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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
UNITED STATES of America, Plaintiff, v. WYOMING NATIONAL BANK OF CASPER, Defendant-Appellee, H. A. True, Jr., Impleaded-Defendant-Appellee, Riverton Auction and Livestock Co., Impleaded-Defendant-Appellant.
No. 74-1117.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 11, 1974.
Decided Nov. 4, 1974.
No appeal by, or appearance for, the United States.
Harold E. Meier, Lander, Wyo. (Meier & Gist, Lander, Wyo., on the brief), for impleaded-defendant-appellant Riverton Auction and Livestock Co.
William E. Barton, Casper, Wyo. (Claude W. Martin and Brown, Drew, Apostólos, Barton & Massey, Casper Wyo., on the brief), for defendant-ap-pellee Wyoming National Bank of Cas-per.
Houston G. Williams, Casper Wyo., (Frank D. Neville and Wehrli & Williams, Casper, Wyo., on the brief), for impleaded-defendant-appellee H. A. True, Jr.
Before BREITENSTEIN, SETH and McWilliams, circuit judges.
BREITENSTEIN, Circuit Judge.
This controversy relates to the respective rights of creditors of a defunct packing company. The action was brought by the United States to enforce a tax levy. Jurisdiction lies under 28 U.S.C. §§ 1340 and 1345; see also 26 U.S.C. § 7402. The district court gave judgment for two secured creditors and against both the United States and the unpaid seller of certain cattle. The United States has not appealed. Our concern is with the claims asserted by the seller against the secured creditors. We affirm.
Appellees Wyoming National Bank of Casper and H. A. True were secured creditors of Wyoming Beef Packers, Inc. Appellant Riverton Auction and Livestock Co. on November 24, 1970, sold cattle to Packers. Packers took immediate possession of the cattle and they became part of its inventory. In payment for the cattle Packers gave River-ton two checks totalling $10,155.38. Bank refused to pay one check because of insufficient funds and the other because of an insufficient endorsement. On December 6 an audit disclosed that Packers was in default under its loan and security agreement with Bank. On the next day Packers turned all of its assets over to Bank. Riverton has never been paid for the cattle.
The United States sued Bank to enforce a tax levy against property of Packers held by Bank. Bank impleaded True and Riverton. Riverton filed a cross-claim against Bank and True. True filed a cross-claim against River-ton. Trial was to the court which made findings that are not here contested. Bank was adjudged a first, and True a second, secured creditor with rights superior to the United States. Riverton was relegated to the position of a general creditor.
On the day of trial, but before it began, Riverton moved under Rule 41, F.R.Civ.P., to dismiss its cross-claims against Bank and True, and moved under Rule 21, F.R.Civ.P., to be dropped as a party. The motions were opposed by the other parties and were denied by the court. Riverton claims that under Wyoming law it has a superior right to recover the unpaid purchase money, and desires to have that issue decided in state court.
The motions are interrelated and may well be considered together. River-ton was a proper party to the suit. In an action to enforce a tax lien “[a]ll persons having liens upon or claiming any interest in the property involved in such action shall be made parties thereto.” 26 U.S.C. § 7403(b). Riverton and True each claimed an interest in the property which Bank held and which the United States asserted was subject to its levy. Joinder was feasible and proper under Rule 19 because without River-ton and True in the suit Bank would be subjected to the “substantial risk of incurring double, multiple, or otherwise inconsistent obligations.”
Rule 41(c) provides that voluntary dismissal by a cross-claimant of a cross-claim is impermissible after a responsive pleading has been filed. Because responsive pleadings to Riverton’s cross-claim had been filed, dismissal could be had only by court order, Rule 41(a)(2), reviewable for abuse of discretion. Shaffer v. Evans, 10 Cir., 263 F.2d 134, 135. The grant of the motion to dismiss would not have taken River-ton out of the case because it was both an impleaded defendant and a cross-defendant.
Rule 21 permits a party to be dropped on motion. Here again the motion is addressed to the discretion of the court. 7 Fed.Pract. & Proc. § 1688, p. 342; see also Standard Industries, Inc. v. Mobil Oil Corporation, 10 Cir., 475 F.2d 220, 232, cert. denied, 414 U.S. 829, 94 S.Ct. 61, 38 L.Ed.2d 63. The court did not abuse its discretion in denying either the Rule 41 or the Rule 21 motion. Riverton was a proper party whose presence was needed to protect the rights of all parties and to accomplish the expeditious determination of the litigation. Ibid.
We turn to the merits. River-ton argues that the Packers and Stockyards Act, 7 U.S.C. § 181 et seq., and particularly regulations of the Secretary of Agriculture promulgated thereunder and appearing as 9 CFR §§ 201.43 (b) and 201.99, control. Reliance is placed on In re Samuels & Co., Inc., 5 Cir., 483 F.2d 557. That decision was reversed sub nom., Mahon v. Stowers, 416 U.S. 100, 94 S.Ct. 1626, 40 L.Ed.2d 79. Among other things, the Supreme Court said that the interests of cattle sellers “like that of similarly situated sellers, would depend for protection upon their taking of appropriate steps under the commercial law of the various States in which they did business.” 416 U.S. at 112, 94 S.Ct. at 1632, 40 L.Ed.2d at 88. The Court went on to say that a course of conduct mandated by the Act or regulations might “be relevant or even dispositive under state law.” 416 U.S. at 114, 94 S.Ct. at 1633, 40 L.Ed.2d at 89. In the case at bar we find nothing in the Act, or in the mentioned regulations, which is relevant to or dis-positive of the state law issues.
This brings us to Wyoming law. Riverton argues that federal courts are bound by a pertinent Wyoming decision. In a state court suit involving Bank, Packers, and an unpaid seller, the seller prevailed over secured creditors. The Wyoming Supreme Court affirmed on the basis of an equally divided court. Wyoming National Bank of Casper v. Greenwald, Wyo., 506 P.2d 434. Two justices voted to reverse on the ground that summary judgment was improper because evidence should have been received as to Bank’s good faith and two voted to affirm on the ground that it was apparent as a matter of law that Bank was not a good faith purchaser.
The record before us establishes Bank’s good faith both in the receipt of its security interest and in its refusal to honor Packers’ checks payable to Riverton. The decision of the Wyoming Supreme Court is not pertinent. The proceedings of the state district court are not reported and are not before us. We have no way of knowing the facts before that court or the rationale of its decision. In Wyoming a district court decision does not have precedential value and is persuasive only to the extent of its underlying logic. State Board of Equalization v. Courtesy Motors, Inc., Wyo., 362 P.2d 134, 135. A federal court need not follow state decisions which are not precedents in the state itself. King v. Order of United Commercial Travelers of America, 333 U.S. 153, 160-161, 68 S.Ct. 488, 92 L.Ed. 608. Absent a controlling Wyoming decision, we must apply that state’s law as we see it.
The issues require consideration of the Wyoming version of the Uniform Commercial Code. See Wyo.Stat., 1973 Cum.Supp. Chap. 22, §§ 34-1-101 to 34-10-105. The trial court’s finding of good faith on the part of Bank is not attacked on this appeal. When Packers took possession of the cattle, it had the power to transfer good title to Bank, a good faith purchaser for value, see § 34-2-403(1). A purchaser is one who takes by purchase. § 34-1-201(33). Purchase includes taking by mortgage, pledge, lien or any other voluntary transaction creating an interest in property. § 34-1-201(32). A person gives value for rights if he acquires them as security for, or in partial satisfaction of, a pre-existing claim. § 34-1-201(44) (b). The transfer occurred when Packers took possession of the cattle because Bank’s security interest then attached. See § 34-9-204; First National Bank of Elkhart County v. Smoker, Ind.App., 286 N.E.2d 203, 209. The only title interest which Riverton could retain was a security interest. See § 34-2-401(1).
The trial court found that when Packers took possession of the cattle they became part of its inventory. Riv-erton does not attack the validity of the security agreements held by Bank and True. The inventoried cattle, and the proceeds therefrom, were subject to those agreements. See § 34-9-306. Riverton does not claim a security interest for itself. Rather, it argues that UCC must be liberally construed, see § 34-1-102(1), and in the absence of specific provisions resort must be had to principles of law and equity. . It says that as a defrauded seller its rights are superior to those of Bank and True. The difficulty is that § 34-2-702(2) provides that on a credit sale to an insolvent buyer, seller has 10 days to make written demand for reclamation and: “Except as provided in this subsection the seller may not base a right to reclaim goods on the buyer’s fraudulent or innocent misrepresentation of solvency or of intent to pay.” This eliminates any common-law claim by a defrauded seller. Riverton made no demand for reclamation within the 10-day period provided by § 34-2-702(2).
Riverton relies on § 34-2-507 (2), which provides that: “Where payment is due and demanded on the delivery to the buyer of goods * * * his right as against the seller to retain or dispose of them is conditional upon his making the payment due.” The provision applies between seller and buyer. We are concerned with the respective rights of seller and holders of security interests.
Although Riverton does not now assert a security interest, it should be noted that Riverton made no effort to comply with the provisions of § 34-9-312(3) and (4) relating to the respective priorities of a purchase money security interest and a conflicting security interest.
Riverton did not take advantage of the rights which it had under Wyoming law and must now yield to the superior rights of Bank and True. The United States District Judge for Wyoming so held. In the absence of a controlling state decision, his determination of the law of that state is most persuasive. Julander v. Ford Motor Co., 10 Cir., 488 F.2d 839, 844.
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:
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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.
TAYLOR et al. v. LOUISIANA.
No. 773.
Decided June 4, 1962.
Carl Rachlin and Judith P. Vladeck for petitioners.
Jack P. F. Gremillion, Attorney General of Louisiana, and M. E. Culligan, Assistant Attorney General, for respondent.
Per Curiam.
Petitioners, six Negroes, were convicted of violating Louisiana’s breach-of-the-peace statute, La. Rev. Stat., 1950, § 14:103.1, and were given fines and jail terms by the state court. The Louisiana Supreme Court declined to review their convictions, and the case is here on petition for a writ of certiorari which we have granted.
Four of the six petitioners went into the waiting room customarily reserved for white people at the Trailways Bus Depot in Shreveport, Louisiana, in order to take a bus to Jackson, Mississippi. The Chief of Police of Shreveport approached the four and asked them why they were in the station. They told him they were interstate passengers and wished to purchase tickets and obtain travel information. The Chief told them they could do this in the colored waiting room and ordered them to move on. When the four refused to leave, stating again that they were interstate passengers and asserting their rights under federal law, they were ordered to leave or be arrested. The spokesman of the group then said, “We have no choice; go ahead and arrest us.” The police thereupon arrested the four of them. The other two petitioners were then arrested, while sitting nearby in the automobile which had brought the six to the bus station.
At the trial there was testimony that immediately upon petitioners’ entry into the waiting room many of the people therein became restless and that some onlookers climbed onto seats to get a better view. Nevertheless, respondent admits these persons moved on when ordered to do so by the police. There was no evidence of violence. The record shows that the petitioners were quiet, orderly, and polite. The trial court said, however, that the mere presence of Negroes in a white waiting room was likely to give rise to a breach of the peace. It held the mere presence of the Negroes in the waiting room, as part of a preconceived plan, was sufficient evidence of guilt. It accordingly held that the four had violated the state breach-of-the-peace statute and that the other two had counseled and procured the others to commit the crime.
Here, as in Garner v. Louisiana, 368 U. S. 157, the only evidence to support the charge was that petitioners were violating a custom that segregated people in waiting rooms according to their race, a practice not allowed in interstate transportation facilities by reason of federal law. Boynton v. Virginia, 364 U. S. 454, 459-460. And see Mayor & City Council of Baltimore v. Dawson, 350 U. S. 877 (public beaches); Holmes v. City of Atlanta, 350 U. S. 879 (municipal golf courses); Gayle v. Browder, 352 U. S. 903 (bus); New Orleans Park Assn. v. Detiege, 358 U. S. 54 (municipal golf course and park). The judgments of conviction must therefore be
Reversed.
Mr. Justice Harlan would grant certiorari and set the case for argument.
Mr. Justice Frankfurter took no part in the consideration or decision of this case.
In relevant part, §14:103.1 provides: "A. Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby: (1) crowds or congregates with others ... in or upon . . . any . . . public place or building . . . and who fails or refuses to disperse and move on, or disperse or move on, when ordered so to do by any law enforcement officer of any municipality ... in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana . .. shall be guilty of disturbing the peace.”
“That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges.” Buchanan v. Warley, 245 U. S. 60, 80-81.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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sc_casesource
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158
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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.
JOHNSON et al. v. NEW JERSEY.
No. 762.
Argued February 28, March 1-2, 1966.
Decided June 20, 1966.
Stanford, Shmukler and M. Gene Haeberle argued the cause for petitioners. With them on the briefs was Curtis R. Reitz.
Norman Heine argued the cause and filed a brief for respondent.
Telford Taylor, by special leave of Court, argued the cause for the State of New York, as amicus curiae. With him on the brief were Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Barry Mahoney and George D. Zuckerman, Assistant Attorneys General, joined by the Attorneys General for their respective States and jurisdictions as follows: Richmond M. Flowers of Alabama, Darrell F. Smith of Arizona, Bruce Bennett of Arkansas, Duke W. Dunbar of Colorado, David P. Buckson of Delaware, Earl Faircloth of Florida, Arthur K. Bolton of Georgia, Allan G. Shepard of Idaho, William G. Clark of Illinois, Robert C. Londerholm of Kansas, Robert Matthews of Kentucky, Jack P. F. Gremillion of Louisiana, Richard J. Dubord of Maine, Thomas B. Finan of Maryland, Norman H. Anderson of Missouri, Forrest H. Anderson of Montana, Clarence A. H. Meyer of Nebraska, T. Wade Bruton of North Carolina, Helgi Johanneson of North Dakota, Robert Y. Thornton of Oregon, Walter E. Ales-sandroni of Pennsylvania, J. Joseph Nugent of Rhode Island, Daniel R. McLeod of South Carolina, Waggoner Carr of Texas, Robert Y. Button of Virginia, John J. O’Connell of Washington, C. Donald Robertson of West Virginia, John F. Raper of Wyoming, Rafael Hernandez Colon of Puerto Rico and Francisco Comeiro of the Virgin Islands.
Duane R. Nedrud, by special leave of Court, argued the cause for the National District Attorneys Association, as amicus curiae, urging affirmance. With him on the brief was Marguerite D. Oberto.
Anthony G. Amsterdam, Paul J. Mishkin, Raymond L. Bradley, Peter Hearn and Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae.
Opinion of the Court by
Mr. Chief Justice Warren,
announced by Mr. Justice Brennan.
In this case we are called upon to determine whether Escobedo v. Illinois, 378 U. S. 478 (1964), and Miranda v. Arizona, ante, p. 436, should be applied retroactively. We hold that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision. We hold further that Miranda applies only to cases in which the trial began after the date of our decision one week ago. The convictions assailed here were obtained at trials completed long before Escobedo and Miranda were rendered, and the rulings in those cases are therefore inapplicable to the present proceeding. Petitioners have also asked us to overturn their convictions on a number of other grounds, but we find these contentions to be without merit, and consequently we affirm the decision below.
Petitioner Cassidy was taken into custody in Camden, New Jersey, at 4 a. m. on January 29, 1958, for felony murder. The police took him to detective headquarters and interrogated him in a systematic fashion for several hours. At 9 a. m. he was brought before the chief detective, two other police officers, and a court stenographer. The chief detective introduced the persons present, informed Cassidy of the possible charges against him, gave him the warning set forth in the margin, concluded that he understood the warning, and obtained his consent to be questioned. Cassidy was then interrogated until 10:25 a. m. and made a partial confession to felony murder. The stenographer recorded this interrogation and read it back to Cassidy for his acknowledgment. Police officers then took him to another part of the building and apparently questioned him further. At 12:15 p. m. he was brought back to the chief detective’s office for another half hour of recorded interrogation. Under circumstances similar to those already described, Cassidy amended his confession to add vital incriminating details. For the next 11 hours he was held in a detention room and may have been subjected to further questioning. At 11:40 p. m. the police returned him to the chief detective’s office for a final brief round of recorded interrogation. Taken together, Cassidy’s three formal statements added up to a complete confession of felony murder, and they were later introduced against him at his trial for that crime.
While the present collateral proceeding was pending following our decision in Escobedo, Cassidy filed affidavits in the New Jersey Supreme Court which detailed for the first time certain supposed circumstances of his confession. In his own affidavit, he claimed that on at least five separate occasions during his interrogation, he asked for permission to consult a lawyer or to contact relatives. The police allegedly either ignored these requests or told him that he could not communicate with others until his statement was completed. Cassidy also produced affidavits from his mother, his uncle, and his aunt, claiming that during this period they called the detective headquarters at least three times and once appeared there in person, seeking information about Cassidy and an opportunity to speak with him. Their efforts allegedly 'were thwarted by the police. These belated claims were left uncontroverted by the State and were accepted as true by the court below for purposes of the Escobedo issue.
The police took petitioner Johnson into custody in Newark, New Jersey, at 5 p. m. on January 29, 1958, for the same crime as Cassidy. He was taken to detective headquarters and was booked. Later in the evening the police brought him before a magistrate for a brief preliminary hearing. The record is unclear as to what transpired there. Both before and after the appearance in court, he was questioned in a routine manner. At 2 a. m. the police drove Johnson by auto to Camden, the scene of the homicide, 80 miles from Newark. During the auto ride he was again interrogated about the crime. Upon arrival in Camden at about 4:30 a. m., the police took him directly to detective headquarters and brought him before the chief detective, three other police officers, and a court stenographer. As in Cassidy’s case, Johnson was introduced to the persons present, informed of the possible charges against him, and given the same warning already set forth. He stated that he understood the warning and was willing to be questioned under those conditions. The police then interrogated him until 6:20 a. m., a period of about one and one-half hours. During the course of the questioning, he made a full confession to the crime of felony murder. This interrogation was recorded by the stenographer and read back to Johnson for his acknowledgment.
Like Cassidy, Johnson filed affidavits in the New Jersey Supreme Court in this collateral proceeding following our decision in Escobedo, detailing for the first time certain supposed circumstances of his confession. In his own affidavit, he claimed that at four separate points during the period described above, he asked for permission to consult a lawyer or to contact relatives so that they could obtain a lawyer for him. As in Cassidy’s case, the police allegedly either ignored these requests or told him that he could not communicate with others until he had given a statement. Johnson also produced affidavits from his mother and his girl friend, claiming that on three occasions after the homicide and prior to the confession, they called detective headquarters or went there in person, seeking information about Johnson and an opportunity to speak with him. Their efforts allegedly were rebuffed by the police. These belated claims, like Cassidy’s, were left uncontroverted by the State and were accepted as true by the court below for resolution of the Escobedo issue.
The confessions of Johnson and Cassidy were offered in evidence by the State at their joint trial for felony murder. The judge held a hearing out of the presence of the jury on the voluntariness of the confessions. Petitioners made no effort to rebut the testimony adduced by the State relating to this issue. The judge found the confessions voluntary and admitted them into evidence. Petitioners then expressly relinquished their right under state law to have the issue of voluntariness, and the accompanying evidence, submitted to the jury for redetermination. They did not introduce any testimony to dispute the correctness of their confessions.
In summation at the close of trial, defense counsel explicitly asserted that the confessions were truthful and pleaded for leniency on this ground. Cassidy’s lawyer stated to the jury:
“Whatever is in this statement made by Stanley Cassidy is true. I know it is true.... [M]y reason for knowing that it is true is because of the meetings and consultations I have had with Stanley. We have been over this many, many times.
“I know it is true because I know Chief Dube, and Chief Dube is a fine interrogator. If you do not answer truthfully, believe me, he will question you until he does get the truth, and Chief Dube got the truth.”
Likewise Johnson’s lawyer told the jury:
“The statement of Johnson was truthful and honest, because when that was finished, that was the end of it.
“There were no threats. There was no attempt to evade. There was no trickery. Anything that Chief Dube asked him he answered honestly and truthfully.”
The jury found Johnson and Cassidy guilty of murder in the first degree without recommendation of mercy, and they were sentenced to death.
The convictions of Johnson and Cassidy became final six years ago, when the New Jersey Supreme Court affirmed them upon direct appeal and the time expired for petitioners to seek certiorari from the decision. There followed a battery of collateral attacks in state and federal courts, based on new factual allegations, in which petitioners repeatedly and unsuccessfully assailed the vol-untariness of their confessions. This proceeding arises out of still another application for post-conviction relief, accompanied by a fresh set of factual allegations, in which petitioners have argued in part that their confessions were inadmissible under the principles of Escobedo. The court below rejected the claim, holding that Esco-bedo did not affect convictions which had become final prior to the date of that decision, and it is this holding which we are principally called upon to review. In view of the standards announced one week ago concerning the warnings which must be given prior to in-custody interrogation, this case also obliges us to determine whether Miranda should be accorded retroactive application.
In the past year we have twice dealt with the problem of retroactivity in connection with other constitutional rules of criminal procedure. Linkletter v. Walker, 381 U. S. 618 (1965); Tehan v. Shott, 382 U. S. 406 (1966). These cases establish the principle that in criminal litigation concerning constitutional claims, “the Court may in the interest of justice make the rule prospective... where the exigencies of the situation require such an application.” 381 U. S., at 628; 382 U. S., at 410. These cases also delineate criteria by which such an issue may be resolved. We must look to the purpose of our new standards governing police interrogation, the reliance which may have been placed upon prior decisions on the subject, and the effect on the administration of justice of a retroactive application of Escobedo and Miranda. See 381 U. S., at 636; 382 U. S., at 413.
In Linkletter we declined to apply retroactively the rule laid down in Mapp v. Ohio, 367 U. S. 643 (1961), by which evidence obtained through an unreasonable search and seizure was excluded from state criminal proceedings. In so holding, we relied in part on the fact that the rule affected evidence “the reliability and relevancy of which is not questioned.” 381 U. S., at 639. Likewise in Tehan we declined to give retroactive effect to Griffin v. California, 380 U. S. 609 (1965), which forbade prosecutors and judges to comment adversely on the failure of a defendant to testify in a state criminal trial. In reaching this result, we noted that the basic purpose of the rule was to discourage courts from penalizing use of the privilege against self-incrimination. 382 U. S., at 414.
As Linkletter and Tehan acknowledged, however, we have given retroactive effect to other constitutional rules of criminal procedure laid down in recent years, where different guarantees were involved. For example, in Gideon v. Wainwright, 372 U. S. 335 (1963), which concerned the right of an indigent to the advice of counsel at trial, we reviewed a denial of habeas corpus. Similarly, Jackson v. Denno, 378 U. S. 368 (1964), which involved the right of an accused to effective exclusion of an involuntary confession from trial, was itself a collateral attack. In each instance we concluded that retroactive application was justified because the rule affected “the very integrity of the fact-finding process” and averted “the clear danger of convicting the innocent.” Linkletter v. Walker, 381 U. S., at 639; Tehan v. Shott, 382 U. S., at 416.
We here stress that the choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved. The right to be represented by counsel at trial, applied retroactively in Gideon v. Wainwright, supra, has been described by Justice Schaefer of the Illinois Supreme Court as “by far the most pervasive... [o]f all of the rights that an accused person has.” Yet Justice Brandéis even more boldly characterized the immunity from unjustifiable intrusions upon privacy, which was denied retroactive enforcement in Linkletter, as “the most comprehensive of rights and the right most valued by civilized men.” To reiterate what was said in Linkletter, we do not disparage a constitutional guarantee in any manner by declining to apply it retroactively. See 381 U. S., at 629.
We also stress that the retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved. Accordingly as Linkletter and Tehan suggest, we must determine retroactivity “in each case” by looking to the peculiar traits of the specific “rule in question.” 381 U. S., at 629; 382 U. S., at 410.
Finally, we emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree. We gave retroactive effect to Jackson v. Denno, supra, because confessions are likely to be highly persuasive with a jury, and if coerced they may well be untrustworthy by their very nature. On the other hand, we denied retroactive application to Griffin v. California, supra, despite the fact that comment on the failure to testify may sometimes mislead the jury concerning the reasons why the defendant has refused to take the witness stand. We are thus concerned with a question of probabilities and must take account, among other factors, of the extent to which other safeguards are available to protect the integrity of the truth-determining process at trial.
Having in mind the course of the prior cases, we turn now to the problem presented here: whether Escobedo and Miranda should be applied retroactively. Our opinion in Miranda makes it clear that the prime purpose of these rulings is to guarantee full effectuation of the privilege against self-incrimination, the mainstay of our adversary system of criminal justice. See, ante, pp. 458-466. They are designed in part to assure that the person who responds to interrogation while in custody does so with intelligent understanding of his right to remain silent and of the consequences which may flow from relinquishing it. In this respect the rulings secure scrupulous observance of the traditional principle, often quoted but rarely heeded to the full degree, that “the law will not suffer a prisoner to be made the deluded instrument of his own conviction.” Thus while Escobedo and Miranda guard against the possibility of unreliable statements in every instance of in-custody interrogation, they encompass situations in which the danger is not necessarily as great as when the accused is subjected to overt and obvious coercion.
At the same time, our case law on coerced confessions is available for persons whose trials have already been completed, providing of course that the procedural prerequisites for direct or collateral attack are met. See Fay v. Noia, 372 U. S. 391 (1963). Prisoners may invoke a substantive test of voluntariness which, because of the persistence of abusive practices, has become increasingly meticulous through the years. See Reck v. Pate, 367 U. S. 433 (1961). That test now takes specific account of the failure to advise the accused of his privilege against self-incrimination or to allow him access to outside assistance. See Haynes v. Washington, 373 U. S. 503 (1963) ; Spano v. New York, 360 U. S. 315 (1959). Prisoners are also entitled to present evidence anew on this aspect of the voluntariness of their confessions if a full and fair hearing has not already been afforded them. See Townsend v. Sain, 372 U. S. 293 (1963). Thus while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the non-retroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim.
Nor would retroactive application have the justifiable effect of curing errors committed in disregard of constitutional rulings already clearly foreshadowed. We have pointed out above that past decisions treated the failure to warn accused persons of their rights, or the failure to grant them access to outside assistance, as factors tending to prove the involuntariness of the resulting confessions. See Haynes v. Washington, supra; Spano v. New York, supra. Prior to Escobedo and Miranda, however, we had expressly declined to condemn an entire process of in-custody interrogation solely because of such conduct by the police. See Crooker v. California, 357 U. S. 433 (1958); Cicenia v. Lagay, 357 U. S. 504 (1958). Law enforcement agencies fairly relied on these prior cases, now no longer binding, in obtaining incriminating statements during the intervening years preceding Escobedo and Miranda. This is in favorable comparison to the situation before Mapp v. Ohio, 367 U. S. 643 (1961), where the States at least knew that they were constitutionally forbidden from engaging in unreasonable searches and seizures under Wolf v. Colorado, 338 U. S. 25 (1949).
At the same time, retroactive application of Escobedo and Miranda would seriously disrupt the administration of our criminal laws. It would require the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards. Prior to Escobedo and Miranda, few States were under any enforced compulsion on account of local law to grant requests for the assistance of counsel or to advise accused persons of their privilege against self-incrimination. Compare Crooker v. California, 357 U. S., at 448, n. 4 (dissenting opinion). By comparison, Mapp v. Ohio, supra, was already the law in a majority of the States at the time it was rendered, and only six States were immediately affected by Griffin v. California, 380 U. S. 609 (1965). See Tehan v. Shott, 382 U. S., at 418.
In the light of these various considerations, we conclude that Escobedo and Miranda, like Mapp v. Ohio, supra, and Griffin v. California, supra, should not be applied retroactively. The question remains whether Escobedo and Miranda shall affect cases still on direct appeal when they were decided or whether their application shall commence with trials begun after the decision^ were announced. Our holdings in Linkletter and Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced. See 381 U. S., at 622 and n. 4; 382 U. S., at 409, n. 3. On the other hand, apart from the application of the holdings in Escobedo and Miranda to the parties before the Court in those cases, the possibility of applying the decisions only prospectively is yet an open issue.
All of the reasons set forth above for making Escobedo and Miranda nonretroactive suggest that these decisions should apply only to trials begun after the decisions were announced. Future defendants will benefit fully from our new standards governing in-custody interrogation, while past defendants may still avail themselves of the voluntariness test. Law enforcement officers and trial courts will have fair notice that statements taken in violation of these standards may not be used against an accused. Prospective application only to trials begun after the standards were announced is particularly appropriate here. Authorities attempting to protect the privilege have not been apprised heretofore of the specific safeguards which are now obligatory. Consequently they have adopted devices which, although below the constitutional minimum, were not intentional evasions of the requirements of the privilege. In these circumstances, to upset all of the convictions still pending on direct appeal which were obtained in trials preceding Escobedo and Miranda would impose an unjustifiable burden on the administration of justice.
At the same time, we do not find any persuasive reason to extend Escobedo and Miranda to cases tried before those decisions were announced, even though the cases may still be on direct appeal. Our introductory discussion in Linkletter, and the cases cited therein, have made it clear that there are no jurisprudential or constitutional obstacles to the rule we are adopting here. See 381 U. S., at 622-629. In appropriate prior cases we have already applied new judicial standards in a wholly prospective manner. See England v. Louisiana State Board of Medical Examiners, 375 U. S. 411 (1964); James v. United States, 366 U. S. 213 (1961). Nor have we been shown any reason why our rule is not a sound accommodation of the principles of Escobedo and Miranda.
In the light of these additional considerations, we conclude that Escobedo and Miranda should apply only to cases commenced after those decisions were announced. We recognize that certain state courts have perceived the implications of Escobedo and have therefore anticipated our holding in Miranda. Of course, States are still entirely free to effectuate under their own law stricter standards than those we have laid down and to apply those standards in a broader range of cases than is required by this decision.
Apart from its broad implications, the precise holding of Escobedo was that statements elicited by the police during an interrogation may not be used against the accused at a criminal trial,
“[where] the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent....” 378 U. S., at 490-491.
Because Escobedo is to be applied prospectively, this holding is available only to persons whose trials began after June 22, 1964, the date on which Escobedo was decided.
As for the standards laid down one week ago in Miranda,. if we were persuaded that they had been fully anticipated by the holding in Escobedo, we would measure their prospectivity from the same date. Defendants still to be tried at that time would be entitled to strict’ observance of constitutional doctrines already clearly foreshadowed. The disagreements among other courts concerning the implications of Escobedo, however, have impelled us to lay down additional guidelines for situations not presented by that case. This we have done in Miranda, and these guidelines are therefore available only to persons whose trials had not begun as of June 13, 1966. See Tehan v. Shott, 382 U. S., at 409, n. 3, in relation to Malloy v. Hogan, 378 U. S. 1 (1964), and Griffin v. California, supra.
Petitioners challenge the validity of their convictions on several other grounds, all of which we have examined with great care, including the claim that their confessions were coerced. We conclude without unnecessary discussion that those grounds which may be tested on this review of the judgment of the New Jersey Supreme Court are without merit. We further find that petitioners’ contentions relating to the voluntariness of their confessions are beyond the scope of our review in this proceeding.
Petitioners’ coerced confession claim was fully litigated and rejected both at trial and in prior post-conviction hearings in the state courts. On neither occasion, however, did petitioners attempt to substantiate certain allegations made for the first time in the present proceeding. As stated above, petitioners now assert that they were prevented from obtaining outside assistance while they were being interrogated. The police allegedly refused them access to their families or a lawyer and also thwarted the efforts of their, relatives and friends to contact them. We have already pointed out that allegations of this kind are directly relevant to a coerced confession claim and that such a claim presents no problem of retroactivity. See also Davis v. North Carolina, post, p. 737.
The New Jersey Supreme Court invoked a state procedural rule, previously applied in another confession case, as a bar to reconsideration of petitioners’ coerced confession claim, even in the light of their new allegations regarding the denial of outside assistance; See N. J. Rev. Rules 3:10A-5 (1965 Supp.); State v. Smith, 43 N. J. 67, 202 A. 2d 669 (1964). This is an adequate state ground which precludes us from testing the
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
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010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
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014. Territorial Supreme Court
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016. Territorial Trial Court
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025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
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029. U.S. Court of Appeals, Tenth Circuit
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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
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045. Delaware U.S. District Court
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047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
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142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
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152. Kentucky U.S. Distrcrict Court
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164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
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170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_source
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F
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
STATE CORPORATION COMMISSION, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, and Missouri Pacific Railroad Company, Intervenor-Respondent.
No. 86-2470.
United States Court of Appeals, Tenth Circuit.
Dec. 5, 1989.
Publication Ordered Jan. 31, 1990.
Frank A. Caro, Jr., Gen. Counsel, and Glenda L. Cafer, Asst. Gen. Counsel, Kan. Corp. Com’n, Topeka, Kan., for petitioner State Corp. for State of Kan.
Robert S. Burk, Gen. Counsel, Ellen D. Hanson, Associate Gen. Counsel, and Evelyn G. Kitay, Interstate Commerce Com’n, Washington, D.C., for respondent Interstate Commerce Com’n.
Charles F. Rule, Asst. Atty. Gen., Catherine G. O’Sullivan and David Seidman, Dept, of Justice, Antitrust Div., Washington, D.C., for respondent U.S.
Joseph D. Anthofer, Gen. Atty., Omaha, Neb., for intervenor-respondent Mo. Pacific R. Co.
T.L. Green, T.L. Green & Associates, P.A., Topeka, Kan., filed an amicus curiae brief for Northeast Kan. Rail Users Ass’n.
Before McKAY and BRORBY, Circuit Judges and BOHANON, District Judge.
The Honorable Luther Bohanon, Senior United States District Judge for the Eastern, Northern and Western Districts of Oklahoma, sitting by designation.
BOHANON, Senior District Judge.
The State Corporation Commission for the State of Kansas (“KCC”) seeks review of an order of the Interstate Commerce Commission (“ICC”) which granted the Missouri Pacific Railroad Company (“MP”) the right to abandon 66 miles of track. KCC is primarily challenging several findings of the ICC and the sufficiency of the underlying evidence.
In accordance with 49 U.S.C. § 10903, MP filed an application with the ICC in December 1985. The application was revised in March 1986 seeking abandonment of 66 miles of railway between milepost 337.8 near Parnell and milepost 403.8 near Vliets in Atchison, Jackson, Nemaha, and Marshall Counties, Kansas. In addition to a protest filed by KCC, twenty-six protests and objections to the abandonment were filed.
On February 10, 1986, the ICC instituted an investigation into the application and set the proceeding for handling under the modified procedure. The ICC also reversed a prior order and instructed MP to submit data concerning overhead or bridge traffic.
Evidence and arguments were presented to the ICC. Several interested parties filed verified statements concerning the impact of the potential abandonment of the track on the local economy and of other potential hardships on the area. Also, MP presented evidence relating to the income and the losses resulting from the operation of the line.
The primary issue is whether the ICC’s decision to allow MP to abandon the line segment involved here was proper. The Administrative Procedure Act sets forth the standard of review as follows: “The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law_” 5 U.S.C. § 706(2) (1977). Since the ICC’s decision is presumptively valid, this court’s review of the decision is limited to a determination of whether there is sufficient evidence to support the decision. Curtis, Inc. v. ICC, 662 F.2d 680, 685 (10th Cir.1981). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Id. Based on this standard of review, we must affirm the ICC’s decision.
Bridge or Overhead Traffic
The first argument that KCC sets forth is that the trial court erred in failing to consider revenues from the transportation of bridge or overhead traffic over the subject line. After considering the evidence, the ICC determined that “the bridge traffic is irrelevant to the abandonment of the line at issue here." We agree with this determination.
The ICC determined that the overhead traffic could be effectively moved over a parallel line between Frankfort and Kansas City via Topeka. Thus, MP's revenues for the subject line would be unaffected by the revenues from the overhead traffic. If revenues are unaffected by abandonment, they should not be considered when determining to what extent a section of line is profitable. Illinois v. ICC, 722 F.2d 1341, 1345-46 (7th Cir.1983). "[L]ocal shippers who are unable to support a railroad cannot demand continued rail transportation simply because the branch is used for movement of through traffic which could be handled as expeditiously over other routes." Illinois v. ICC, 698 F.2d 868, 873 (7th Cir.1983), quoting Baltimore Ohio Railroad Co. Abandonment, 354 I.C.C. 240, 244 (1978).
Revenue Evidence
KCC argues that the ICC created a presumption that MP's revenue statistics were correct and improperly accepted actual transit revenues for the six months of 1985 as rebuttal. We cannot find that the ICC created a presumption in favor of MP that its statistics were correct. In a detailed discussion the ICC found that the protestants' figures were flawed or were presented without an explanation of the underlying facts on which they were based. For example, KCC included revenues from overhead traffic in its operations revenues. Thus, KCC's figures were defective. Two of the protestants submitted figures which also showed a loss to MP making it irrelevant whether those two protestants' figures were accepted over IVIP's figures. Further, the ICC did not accept MP's figures for the investment return on locomotives.
The ICC allowed MP to substitute actual figures for the last six months of 1985. MP had originally submitted only estimates since the actual figures were unavailable. KCC argues that this decision constituted reversible error but concedes that actual figures are preferable to estimates. Further, the actual figures were higher than KCC's figures, and KCC has not argued that the actual figures were inaccurate. If the agency did commit an error, it did not prejudice KOC to its detriment and was thus harmless.
Alternate Transportation
KCC argues that the agency erred in finding that adequate alternate transportation was available. The KCC agrees that trucking is the only real alternative available. Only two to three percent of the grain from the area is transported by rail; the remaining grain is transported by trucks. None of the elevators contended that the abandonment would result in their closure. The court found trucking was an adequate alternative.
KCC cites Georgia Public Service Commission v. United States, 704 F.2d 538 (11th Cir.1983), in support of their position. We agree that to have meaning, "adequate alternative transportation" must be interpreted to require transportation which is both logistically and economically feasible. Unlike Georgia Public Service where there was virtually no evidence to support a finding of alternative transportation, here there is substantial evidence to support the agency's finding. The protesting elevators' answers to MP's interrogatories indicate that the elevators regularly used motor service and that there existed at least six grain-hauling motor carriers in the area. None of the protesting elevators indicated that the abandonment of the line would result in closure of the elevator. Also between 97 and 98 percent of the grain is presently transported by motor carrier. In light of the evidence, the agency did not err in finding that adequate alternative transportation exists.
Impact on Involved Communities
KCC also argues that the agency erred in finding that the abandonment would have no serious adverse effect on the communities involved. KCC substantially makes the same argument that it did regarding adequate alternative transporta- tion; since no alternative transportation exists, the abandonment will have a serious adverse impact on the communities involved. We addressed KCC’s argument earlier.
The agency considered the additional costs to the counties for upkeep and repair of roads and bridges. The MP averred that the costs proposed by the protestants were speculative and unsupported by the evidence. The speculative nature of the evidence is confirmed by the disparity among the protestants’ estimates.
The agency also considered environmental issues and labor protection to evaluate the impact of the abandonment on the communities. KCC has not alleged that the agency’s findings regarding these two factors were in error. The agency’s decision regarding the impact on the communities involved is supported by substantial evidence.
Perfection for Abandonment
Lastly, KCC argues that the ICC erred in finding that MP did not perfect the line for abandonment. KCC urges that MP deliberately downgraded the line for abandonment by not matching motor carrier rates, by offering certain alternate routings, and by allowing car shortages to occur. The agency correctly found that MP did not perfect the subject section of line for abandonment.
MP was not required to set rates competitive with those of motor carriers. The truck distances are shorter than the rail distances and many of the trucks are owned by the owner-operators who do not have terminal costs. Given these facts, MP has not been able to provide rates which are competitive with the motor carrier. Further, there was no showing that if MP had provided rates at or near the level of motor carrier that MP would have made a reasonable profit on the subject line.
MP presented plausible reasons for its routing decision and car usage. Further, routing and car usage are discretionary management decisions. Given the business reasons for MP’s routing and car usage decisions, we cannot say the agency incorrectly found that MP did not perfect the line for abandonment.
Conclusion
A decision to allow an abandonment involves balancing “ ‘[t]he benefits to particular communities and commerce of continued operation [against] the burden thereby imposed upon other commerce.’ ” Georgia Public Service Commission at 541, quoting Colorado v. United States, 271 U.S. 153, 168, 46 S.Ct. 452, 455-56, 70 L.Ed. 878 (1926). In determining whether abandonment is proper, the agency must consider the profitability of the line as well as the affect on the communities involved. “Where there is substantial support in the record for the Commission’s findings, it is not the court’s function ‘to substitute its own conclusions for those which the Commission had fairly drawn from such findings.’ ” Illinois v. ICC, 698 F.2d at 871, quoting Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974). Here there is substantial support for the agency’s decision.
It is apparent from the agency’s written opinion that it carefully considered the relevant factors and then balanced the competing interests. The agency then decided that abandonment of the line was proper. The ICC’s decision was in accord with the evidence and the law, and we must affirm.
. In the original application filed in December 1985, MP sought to abandon 71.5 miles of track. In the revised application, MP sought to abandon only 66 miles of track.
. Bridge or overhead traffic is traffic which does not originate or terminate at a point on the 66 miles of the subject railway.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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songer_state
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56
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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".
Christos LAGANAS et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 5631.
United States Court of Appeals First Circuit.
Heard April 6, 1960.
Decided Aug. 16, 1960.
George C. Eliades, Lowell, Mass., and Timothy J. Driscoll, Boston, Mass., for petitioners.
Sharon L. King, Atty., Dept, of Justice, Washington, D. C., with whom Howard A. Heffron, Acting Asst. Atty. Gen., and Lee A. Jackson and Robert N. Anderson, Attys., Department of Justice, Washington, D. C., were on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
This petition to review two decisions of the Tax Court involves the application of Helvering v. Clifford, 1940, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788. The taxpayer for the year 1947 is Christos Laga-ñas hereinafter called the husband, who filed a separate return, and for the years 1948 and 1949 taxpayers are the husband and his wife, who filed joint returns. In 1946 the Christos Lagañas Shoe Company (stockholdings not shown) manufactured shoes in Lowell, Massachusetts in a leased building on Jackson Street. On November 30, 1946 the husband purchased the Jackson Street property from the lessor for $75,000. $30,000 was paid by a check drawn by him on the joint account of himself and his wife in the Middlesex County National Bank. At this time the joint account included at least $30,000 deposited by the wife out of her personal earnings in the shoe factory. The size of the husband’s deposits did not appear. The remaining $45,000 was advanced by the bank in consideration of a note signed by the husband secured by a first mortgage on the property. On the same day the husband executed an agreement and declaration of trust, to be known as the Lagañas Realty Trust and hereinafter called the trust, of which he was sole trustee, and transferred the property to himself as trustee. This real estate was at all material times the sole asset of the trust. On January 6, 1947, the husband, as trustee, appointed his wife as co-trustee. The Commissioner held that all of the income of the trust was taxable to the husband as grantor, and the Tax Court .affirmed his position.
We will summarize the trust’s relevant provisions. In an introductory, unnumbered paragraph it is recited that the purpose of the trust is to hold and develop real estate “as a common or joint investment for the common and equal benefit of the shareholders, ratably, according to their several holdings of shares * * *.” Paragraph (1) states that the husband shall be the trustee, but recognizes that there may be others, and provides that they shall hold the property as trustee or trustees under the agreement. Paragraph (2) defines a shareholder as one of record, and provides that shareholders shall not have “any interest in the Trust Property itself, real or personal, and shall have no right to call for any partition * * * or * * * distribution.” Paragraph (3) provides that the trustee(s) may issue additional shares for such consideration as they may determine, and that a shareholder may be a trustee. Paragraph (4) provides that the trustee(s) “shall have and exercise the exclusive management and control * * * in any manner that they shall deem for the best interests of the shareholders, with all the rights and powers of absolute owners thereof.” This, and the ensuing three paragraphs, grant explicit powers, which are broad, but not more so than the powers now customarily granted to testamentary and indenture trustees.
The balance of the trust contains nothing of present interest, except the following.
“(7) (a). The Trustee (or Trustees) may declare dividends from the net income of the Trust Fund among the cestuis que trustent as when and in such amounts as he (or they) deem proper, and may distribute such portion of the surplus, in such amounts and at such times as he (or they) may deem proper.”
“(17) This agreement and declaration may be amended or altered, except as regards the liability of the Trustees and shareholders by the Trustees for the time being, but no alteration or amendment shall affect any person not having actual notice thereof, until a certificate of such alteration or amendment has been recorded in said Registry of Deeds, nor shall any alteration or amendment, or other action affect previously acquired rights of any third person other than shareholders hereunder.”
“(19) The trust under this agreement may be terminated at any time by the trustee for the time being.”
“(21) Upon the termination of the Trust under this Agreement by the expiration of time, or for any other cause, the Trustee shall liquidate the Trust property as he may deem for the best interests of the shareholders, and divide the net proceeds among the shareholders in proportion to their holdings.”
Two hundred shares were issued, 20 to the husband, 20 to his wife, and 40 to each of their four minor children.
At the trial various facts were stipulated, and certain oral testimony was offered by taxpayers. The court disbelieved some of this testimony. We have no quarrel with that action. It found that no gift tax returns were filed, and that in each of the income tax returns the husband was described as the grantor of the Trust. It concluded that he was in fact the grantor. We do not regard this as plainly wrong.
The question is, therefore, whether the income (other than that distributed to him in his capacity as shareholder) is taxable to him either under Helvering v. Clifford, supra, or under section 166 of the Internal Revenue Code of 1939. As to the former, the court stated (citations and footnotes omitted):
“Considering the ability of the grantor, at least with the concurrence of his wife, to create additional trust interests which could reduce, increase or virtually ■eliminate the interests of the beneficiaries other than his wife, the broad and almost unrestricted powers of control expressly conferred upon the trustees, the fact that the husband’s business was the tenant of the sole asset of the trust, that the trust income might have been, and in fact probably was to some extent, used to defray the grantor’s legal obligations and to reduce indebtedness for which he was at least secondarily liable, and that .all of the trust income was merely reallocated within the immediate family group of the grantor, we think it would be difficult to conclude that petitioner-husband could have actually considered himself the poorer by reason of the creation of the trust. There was nothing to prevent the trustee-beneficiaries from greatly increasing their own shares at the expense, of course, of the other beneficiaries. And in such a case they would have no fiduciary obligation.”
We do not find this analysis convincing. While it is true that the general question is whether the grantor has retained so large a part of the bundle of rights that in practical effect he is the owner, it is not possible to disregard the restrictions imposed by the grantor’s assumption of fiduciary duties to the extent attempted by the Tax Court. It is now axiomatic in the income tax-field that state trust law governing fiduciaries is not necessarily determinative of the tax consequences, see, e. g., Wheeling Dollar Savings & Trust Co. v. Yoke, 4 Cir., 1953, 204 F.2d 410, 412, certiorari denied 346 U.S. 898, 74 S.Ct. 221, 98 L.Ed. 398; White v. Higgins, 1 Cir., 1940, 116 F.2d 312, 320, but this does not mean that the trustee’s status as such can be disregarded. See United States v. Morss, 1 Cir., 1947, 159 F.2d 142. Even the Treasury recognizes that administrative powers lead to taxing the grantor on trust income only if the powers can be used to the grantor’s advantage. Treas. Reg. 111, § 29.22(a)-21(e) 1946. For example, the fact that what was claimed to be the husband’s business was the tenant of the trust is irrelevant. Certainly the trustee had a duty to require a fair rent for the benefit of the trust beneficiaries. McIntire v. Mower, 1910, 204 Mass. 233, 90 N.E. 567. We think the court confused those cases in which it was found significant that the trust res consisted of stock in the grantor’s business. In that situation the grantor, through control of dividend policy, could control the income going to the trust. See, e. g., Chertoff v. Commissioner, 6 Cir., 1947, 160 F.2d 691. The court rightly considered actual use of trust income to discharge the grantor’s duty to support his children, but we think the record gives only very weak evidence that this was actually done. Of course distribution of all of the income within the “immediate family group of the grantor” is a factor of which the Clifford case itself compels consideration. But even as to this, courts must proceed with caution lest they let it stand for more than it is, for, as has often been pointed out, the family is not the unit of taxation. United States v. Morss, supra. Finally, we have grave doubts, to say the least, that the power to issue new shares can be exercised, as the Tax Court seems to say, in a non-fiduciary capacity. The power expressly calls for consideration for new shares, and we think a court of equity would require a fair consideration.
However, we believe the court’s decision is correct, although for another reason. Paragraph (17), supra, gave the trustees a power to amend. There is no indication that this power was limited to minor adjustments needed to carry out the purposes of the trust. See Kohnstamm v. Pedrick, 2 Cir., 1945, 153 F.2d 506, 509. Cf. Sinopoulo v. Jones, 10 Cir., 1946, 154 F.2d 648. A power to revoke is not held in a fiduciary capacity. Reinecke v. Smith, 1933, 289 U.S. 172, 53 S.Ct. 570, 77 L.Ed. 1109; Welch v. Terhune, 1 Cir., 1942, 126 F.2d 695, certiorari denied 317 U.S. 644, 63 S.Ct. 37, 87 L.Ed. 519. Even if we were to conclude that a power to amend fell short of a power to revoke, and was a fiduciary power limited to the best interests of the beneficiaries, it could not mean less than a right to vary, or “spray,” the income between the beneficiaries, including the grantor. Thus, if the grantor were the sole holder of the power, he would clearly be taxable on the trust income. Stock-strom v. Commissioner, 8 Cir., 1945, 148 F.2d 491, certiorari denied 326 U.S. 719, 66 S.Ct. 23, 90 L.Ed. 425; Commissioner of Internal Revenue v. Buck, 2 Cir., 1941, 120 F.2d 775.
This brings a final question: Does the wife’s 10% interest in the income and corpus of the trust constitute such a “substantial adverse interest” that her joint holding of the power to amend precludes taxing the grantor on the trust income? As to all but 10% of the income, we hold without difficulty that it does not. Cf. Camp v. Commissioner, 1 Cir., 1952, 195 F.2d 999; Commissioner of Internal Revenue v. Prouty, 1 Cir., 1940, 115 F.2d 331, 133 A.L.R. 977. A substantial adverse interest precludes taxing the grantor on the theory that the holder of the interest will be so motivated to protect his interest that he will resist any attempt by the grantor to alter the trust. See Fulham v. Commissioner, 1 Cir., 1940, 110 F.2d 916. But here the taxpayer’s wife can preserve her 10% interest while joining in any redistribution of the other beneficiaries’ respective shares. Thus, the grantor, with a compliant co-power-holder, can readily give himself power to spray 90% of the income as he sees fit.
The remaining 10% is another matter. It has been said that because of “family solidarity” a wife’s interest in income is not truly adverse to her husband’s. Altmaier v. Commissioner, 6 Cir., 1940, 116 F.2d 162, certiorari denied 312 U.S. 706, 61 S.Ct. 827, 85 L.Ed. 1138; cf. Fulham v. Commissioner, supra. However, such a concept often counters reality. Is the commissioner to investigate the existing rapport, or lack of it, between a particular taxpayer and his wife before determining the incidence of the tax? We believe that a single rule must be adopted, and that the preferable one is to assume that each wife stands on her own feet. Commissioner of Internal Revenue v. Katz, 7 Cir., 1943, 139 F.2d 107, 110; Phipps v. Commissioner, 2 Cir., 1943, 137 F.2d 141, 144. Therefore in this case the wife had an adverse interest of 10%. As to the years in which joint returns were filed, this point is of no consequence, but as to the first year, there must be an adjustment.
Judgment will enter reversing the decision of the Tax Court for the year 1947, and affirming the decision for the years 1948 and 1949, and remanding the action for further proceedings consistent herewith.
. Termed by taxpayers a “familiar * * ‘Massachusetts’ or business trust with non-transferable certificates,” upon which circumstance they base certain claims. We do not consider these claims, as it is elementary that the “familiar ‘Massachusetts’ or business trust” has transferable shares. Mass.G.L. c. 182, § 1.
. Elsewhere the trust provides that there should be “not more than three” trustees; that in ease of death, resignation, or incapacity, vacancies shall be filled by the survivors, and that if there is more than one trustee, action by a majority for the time being shall be valid for all purposes. No special powers are given the husband as distinguished from any other trustee. We cannot accept the government’s antediluvian contention that while Christos and his wife were the trustees, “Christos was clearly a majority.” Cf. United States v. Dege, 1960, 364 U.S. 51, 80 S.Ct. 1589, 4 L.Ed.2d 1563.
. It is contended that this paragraph permits unequal distribution among shareholders. Such an interpretation would have to overcome the presumption that beneficiaries are to be treated equally, strengthened in this case by the opening recital as to equality and ratability. We are not called upon, however, to decide this question.
, The Tax Court neglected to note that because the wife released her dower interest in the Jackson Street property on March 27, 1947, she might to that extent be regarded as a grantor. Since the parties have not raised this matter, we will assume, without further consideration, that this did not make her a grantor during the period that none of the trust income was attributable to that release.
. “Where at any time the power to re-vest in the grantor title to any part of the corpus of the trust is vested—
“(1) in the grantor, either alone or in conjunction with any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom, or
“(2) in any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom,
then the income of such part of the trust shall be included in computing the net income of the grantor.” Int.Rev.Code of 1939, § 166, 26 U.S.C.A. § 166.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_appel2_1_4
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
BETHLEHEM SHIPBUILDING CORPORATION, Limited, et al. v. MONAHAN, Deputy Com’r., et al.
No. 2739.
Circuit Court of Appeals, First Circuit.
Dec. 17, 1932.
La Rue Brown, of Boston, Mass. (Elias Eield, Richard H. Field, and Brown, Field & McCarthy, all of Boston, Mass., on the brief), for appellants.
Raymond F. Barrett, of Boston, Mass. (William J. Holbrook, of .Boston, Mass., on the brief), for appellee Leon E. Simpson.
Before BINGHAM, WILSON, and MORTON, Circuit Judges. ,
BINGHAM, Circuit Judge.
This is a suit-to enjoin the enforcement of a compensation order made under the Longshoremen’s and Harbor Workers’ Compensation Act (33 IT. S. C. § 901 et seq, [33 USCA § 901 et seq.]). In the District Court the plaintiffs contended that the entire award of the Deputy Commissioner was not in accordance with law, in that (1) there was no evidence before him to justify his finding that the employer neglected to furnish medical1 treatment to its employee, Simpson; and (2) that the general finding of the Commissioner that the employer neglected to furnish medical treatment was inconsistent with his specific findings.
.The District Court found and ruled that the compensation order was in accordance with law in so far as it awarded Simpson compensation for medical services of Dr. Ryan, the services furnished at the Weymouth Hospital, and the services of the nurse, Mrs. Campbell, but was not to the extent that it required the plaintiffs'to pay for the surgical services of Dr. Brown, and enjoined the enforcement of the order in fhe latter respect only. It is from this decree in so far as 'it upheld the order of the Commissioner that this appeal is taken.
The question presented relates to the liability of the plaintiffs under section 7(a) of the act, 33 U. S. C. § 907 (a), 33 TTS.CA § 907(a), for the services in question.
The facts as found by the Commissioner-are: - That on March 14, 1931, Simpson, while employed by the shipbuilding corporation, received an occupational injury to the thumb on his left hand necessitating amputation of a portion of it; that the plaintiffs furnished medical treatment by Drs. McCausland and Burke until April 11, 1931; that on that day, Saturday, at about 2 o’clock p. m., Simpson went to Dr. McCausland for treatment, complaining of severe pain in the left arm; that Dr; McCausland examined mm and found red streaks extending up the arm, which condition he diagnosed as lymphangitis ; that he applied hot bandages and directed the patient to go home and put hot dressings on the thumb every two hours; that Dr. McCausland then told Simpson he would be absent from home until the following Monday and advised that, if the treatment did not give relief, to get in touch with Dr. Burke or Dr. Jones, the plant physicians for the employer; that Simpson follow-, ed the instructions, but did not obtain any relief and about 8 o’clock on the same day he went for advice to the home of Dr. Mitchell, first-aid man at the plant of the employer; that Mitchell declined to treat him, but told him to follow the directions of Dr. McCausland, and, if he did not get relief, to get in touch with Dr. Burke or Dr. J ones; that later that evening, the pain became more intense, the red streaks wider, and swelling developed in the left auxilliary glands; that thereupon an effort was made in Simpson’s behalf to secure the services of Dr. Burke and Dr. Jones, but without success in either ease; that an emergency existed; that immediate medical attention was necessary to prevent the spread of the infection in Simpson’s left arm and his possible death; and that the employer neglected to furnish such medical attention; that in this situation Dr. Ryan, Simpson’s own physician, was called at about 11 p. m. that night to attend him; that'when Dr. Ryan arrived Simpson was in a serious condition, suffering from blood poisoning, and was ordered immediately to the Weymouth Hospital, where he remained from April 11 to April 26, 1931; that Dr. Ryan found it necessary to consult Dr. Brown, a surgeon; that on April 16, 1931, Dr. Brown saw Simpson at the Weymouth .Hospital, found a septic condition, and removed several crusts over the thumb of the left hand and also removed an embedded suture. Also that the services of Dr. Ryan, Dr. Brown, the facilities at the Weymouth Hospital, and the services of the nurse were necessary; that these doctors furnished the employer and the Deputy Commissioner a proper report within twenty days following the first treatment; and that the bills of the doctors, the hospital, and the nurse were reasonable.
The evidence before the Commissioner discloses that the plaintiff knew of Simpson’s injury; that they had been requested to furnish medical and surgical assistance, and that they had furnished it down to the afternoon of April 11; that then Dr. McCausland, the physician and surgeon in charge, went away without arranging with Dr. Burke or Dr, Jones to 'attend the patient, and at a time when he had reason to believe that the patient was liable to need' their attention, but left it upon Simpson to get in touch with Dr. Burke or Dr. Jones; and that soon there.after, on that day, his condition became critical, requiring immediate attention. The claimant’s evidence shows that while he was in this critical condition, suffering pain, his wife sent her brother to a nearby grocery store to call one of these doctors over the telephone, but that neither one was at home and it was unknown when they would return home or where they were; that in this extremity Dr. Ryan was called at about 11 p. m., and on his arrival, the claimant being in a serious condition, suffering from blood poisoning, the doctor ordered him taken to the hospital. In this situation it cannot reasonably be said that there was no evidence from which it could be found that the plaintiffs had neglected to provide the necessary medical treatment and care for the claimant. Moreover, it appears that when the plaintiffs, on April 14, objected to the employment of Dr. Brown and endeavored to have Dr. Ryan select a doctor froni one of three that they named to perform the necessary surgical operation, they raised no objection to the services rendered or reasonably necessary to be rendered by Dr. Ryan or the nurse or to the facilities afforded by the hospital, but recognizing their failure, impliedly assented thereto. The evidence not only warrants a finding that the plaintiffs had neglected to provide necessary medical attention and care, but, having done so, they assented to the rendition of services by Dr. Ryan, the use of the hospital, and the services of the nurse.
The general finding of the Commissioner —that the employer neglected to furnish medical treatment—is not inconsistent with his special findings or they with it.
The decree of the District Court is affirmed, with costs to the appellee Leon E. Simpson.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
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songer_r_bus
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0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ALLIED ARTISTS PICTURE CORP., Plaintiff, and Avco Embassy Pictures Corp., et al., Plaintiffs-Appellants, Cross-Appellees, v. James A. RHODES, Defendant-Appellee, Cross-Appellant.
Nos. 80-3566, 80-3600.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 7, 1981.
Decided June 4, 1982.
Rehearings and Rehearings En Banc Denied Aug. 17, 1982.
Earl F. Morris, Harry Wright, III, Porter, Wright, Morris & Arthur, Columbus, Ohio, Robert W. Trafford, Dixon F. Miller, Alan Dershowitz, Cambridge, Mass., for Avco Embassy Pictures Corp., et al.
William J. Brown, Atty. Gen. of Ohio, Alan C. Witten, Asst. Atty. Gen., Gregory E. Young, Antitrust Section, Columbus, Ohio, for Rhodes.
Before LIVELY and MERRITT, Circuit Judges, and CECIL, Senior Circuit Judge.
MERRITT, Circuit Judge.
An Ohio statute regulating the marketing of motion pictures outlaws “blind bidding” and instead requires suppliers of motion pictures to screen their films in Ohio for all interested theater operators prior to negotiations or bidding. The second feature of the statute under attack is a set of competitive bidding guidelines. Although the statute allows producers and distributors to market films to exhibitors through negotiations rather than competitive bidding, the statute establishes guidelines for competitive bidding if distributors choose bidding as the method of marketing a film. In particular, the statute requires a disclosure of invitation-to-bid lists and the bids themselves; and if a distributor “rejects all bids submitted pursuant to an invitation to bid, he shall issue a new invitation to bid” rather than negotiate individual contracts with exhibitors. The third feature of the statute under attack significantly restricts the distributors’ ability to charge theaters advance and guaranteed payments in addition to charging a percentage of box office receipts.
Plaintiff-appellants — the country’s nine major producers and distributors of films, who account for approximately ninety percent of film industry revenues — contend that the challenged provisions abridge free speech and violate the commerce clause as well as the antitrust and copyright laws. In a comprehensive opinion describing in detail the motion picture industry and its marketing practices, District Judge Duncan found no violation of federal law. 496 F.Supp. 408 (S.D.Ohio 1980). We uphold as valid the trade screening requirement and the bidding guidelines including the rebidding requirement. We remand for further consideration under the commerce clause the provisions of the statute relating to pricing methods.
I.
The Ohio statute, like similar statutes in at least eighteen other states, is an out-
growth of the historical tug-of-war between the major companies that produce and supply motion pictures and the theaters where they are shown. Judge Duncan found that the basic state interests supporting the statute are the need to provide exhibitors with sufficient information to assess new films and reject poor ones, the need to assure fairness in bidding procedures to counteract deceptive and unfair trade practices, and the need to redress a perceived imbalance in the bargaining or market power of the major producers and the exhibitors. The statute does not have a preamble or any recorded legislative history which clarifies its purposes or articulates the underlying state interests. We are left, as was the District Court, to articulate those purposes from the text itself.
The State combines several distinct arguments in support of its view that additional information about films and fair bidding procedures are needed and that exhibitors lack adequate negotiating strength. Judge Duncan found that under blind bidding the information available to the exhibitor is often insufficient to judge the quality of the film and at times deceptive. He found that the purpose of the bidding guidelines is to counteract deception, collusion and unfair trade practices.
Judge Duncan also found that a purpose of the statute is to shift risks of loss to distributors in order to redress an imbalance in bargaining power. The perceived imbalance in bargaining power arises from the fact that movie production and distribution are concentrated in the hands of a few large companies while the theaters are more widely held by smaller entities. The story and the film techniques used, as well as the star system promoted by the producers, give some pictures a unique quality; and the copyright laws give the distributor a monopoly in the market for individual films. Movie production for network and cable television and video cassettes bypasses theaters and gives producers a strong additional market for films. As home viewing has increased, the number of theaters has declined creating an atmosphere of market uncertainty and insecurity for exhibitors. In addition, in the 1940s and 1950s federal antitrust decrees prohibited certain tying arrangements, refusals to deal and reciprocal arrangements engaged in by producers, and the decrees required producers to divest themselves of ownership of theater circuits through which they controlled exhibition of first run movies. In effect the exhibitors and the State claim that these decrees have not adequately redressed the balance of bargaining power between the two sides and that state legislation is needed to shift the risk of loss.
The producers argue that the perceived need for additional information and fairer bidding procedures does not exist. They argue that the perceived imbalance in bargaining power also does not exist, and that even if it does, the State’s attempt to shift risks away from in-state exhibitors to out-of-state distributors — one legislative purpose found by Judge Duncan to underlie the statute — is invalid under the commerce clause. They point out that neither the legislature nor the court below found any antitrust liability, monopoly power, predatory pricing or any “coercive or collusive distributor conduct,” nor “any fraudulent or deceptive purpose in blind bidding.” (Appellants Brief at 9.) The producers argue that the prohibition of “blind bidding” — or as they prefer to call it, “advanced licensing” — and the restrictions on bidding procedure significantly delay the exhibition of films in “a complex, high risk business requiring multi-million dollar investments, which depend on the vagaries of public taste,” “fresh” material, and “timely release.” (Id. at 3-5.) They argue that the statute significantly increases distributor costs and interferes with customary planning and national promotional efforts, particularly “wide release,” i.e., the simultaneous release of a film in theaters across the country. They assert that the statute simply seeks “to protect the profitability of local business [theaters] at the expense of out of state business [producers and distributors]” (id. at 10) and reduces competition among exhibitors for films by limiting advance and guaranteed payments and by requiring full disclosure of bidders and the terms of bids. They contend that given the absence of any legitimate state interest in regulating an interstate communications industry, Ohio has exceeded its constitutional authority.
II. THE VALIDITY OF THE TRADE SCREENING REQUIREMENT
In United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948), the seminal antitrust case which restructured the film industry, see M. Conant, Antitrust in the Motion Picture Industry (1960), the Supreme Court defined “blind bidding” as the “practice whereby a distributor licenses a feature before the exhibitor is afforded an opportunity to view it.” 334 U.S. 157, n. 11, 68 S.Ct. at 929, n. 11. The Court approved a district court antitrust decree designed “to remedy the problems” —mainly misrepresentation and deceptive trade practices — “created by that practice.” Id. The Court quoted language from the decree setting out some of the reasons exhibitors need accurate information about films before licensing negotiations take place. It appears from the Supreme Court opinion and from the record in this case that potential abuses arising from blind bidding have been a legitimate concern of exhibitors for many years and a bone of contention within the industry. Judge Duncan found that the exhibitors’ need for accurate information about films before they buy is real and that trade screening is the best remedy. 496 F.Supp. at 421. Judge Duncan stated that “by permitting Ohio exhibitors to view the film before bidding, it permits the exhibitors to use their own business judgment in determining whether and on what terms, to bid for a motion picture license. It effectively removes the unfairness inherent in the blind bidding process exhibitors described as ‘buying a pig in a poke.’ ” 496 F.Supp. at 431.
State statutes repealing the doctrine of caveat emptor in its various forms in order to restrain possible deceptive trade practice in various industries are common. Statutes which require that buyers and sellers provide each other with accurate information about their products and services in order to counteract deceptive and misleading practices are based on legitimate state interests. The trade screening requirement here is a variation on that statutory theme. The fact that one purpose of trade screening may be, as Judge Duncan found, to redress an imbalance in bargaining power in favor of in-state exhibitors — a state interest we find highly suspect under the commerce clause (as explained in section IV below) — does not render invalid the state’s legitimate interest in restraining deceptive trade practices by encouraging the flow of accurate information prior to contracting.
The District Court found as fact that the delays in film release caused by the trade screening requirement, although possible, appear to be infrequent and relatively minor in nature. We do not view this finding as clearly erroneous. Trade screening has been used in the industry for many years; and, as Judge Duncan found, it is content-neutral under the first amendment. We agree with the District Judge that in light of the “problems” of deception that it tends “to remedy” — using the words of the Supreme Court in Paramount, 334 U.S. at 157, n.11, 68 S.Ct. at 929, n. 11 — it does not impose undue burdens on producers and distributors under that amendment, see Konigsberg v. State Bar of California, 366 U.S. 36 at 50-51, 81 S.Ct. 997, at 1006-1007, 6 L.Ed.2d 105 (1961); United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968); or the commerce clause, see Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970); Exxon Corp. v. Governor of Md., 437 U.S. 117, 126-28, 98 S.Ct. 2207, 2214-2215, 57 L.Ed.2d 91 (1978). Like the statute upheld in Exxon prohibiting certain types of vertical integration in the gasoline business, the trade screening requirement is facially neutral and does not distinguish between in-state and out-of-state distributors. It is true, however, as in Exxon, that its impact falls on out-of-state business because there are no in-state producers and distributors. This fact does not invalidate the statute, as the Court held in Exxon, but it may call for a more penetrating review of the burdens imposed on commerce and the state interest served. As previously noted, Ohio has an easily explained, traditional state interest supporting the trade screening requirement; and, like the District Court, we do not find a less restrictive alternative that would serve that purpose.
Nor does the trade screening requirement violate restrictions implicitly placed upon state regulatory authority by the antitrust and copyright laws. The prohibition of blind bidding insures more informed and rational decision making in the marketplace. The anti-competitive effects that may be incidental to trade screening— that exhibitors willing to blind bid are now forbidden to do so — are not the types of restraints the antitrust laws were designed to prohibit. For, as the Supreme Court noted in Exxon, “if an adverse effect on competition were, in and of itself, enough to render a state statute invalid, the State’s power to engage in economic regulation would effectively be destroyed.” 437 U.S. at 133, 98 S.Ct. at 2217.
Even if the prohibition of “blind bidding” were shown to require behavior inconsistent with the Sherman Act, Ohio’s statute regulating motion picture licensing would fall within the “state action exemption” to the antitrust laws. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943); New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 411, 58 L.Ed.2d 361 (1978). There is no question that the trade screening requirement is “clearly articulated and affirmatively expressed [by the state legislature] designed to displace unfettered business freedom” in methods of licensing motion pictures. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. at 109, 99 S.Ct. at 411. Furthermore, the trade screening requirement is entirely self executing. This feature of the statute delegates no authority to either private parties or non-state agencies to control price, supply, demand, or market entry. Thus the “active state supervision” requirement discussed in California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., et al., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), need not be present. The state need not itself conduct the screening in order for the exemption to apply. This is not a case in which “the state simply authorizes price-setting and enforces the prices set by private parties,” as in Midcal, 100 S.Ct. at 943, or in which “anticompetitive conduct is ‘promoted’ by state action,” id., but is rather a case in which conduct is “compelled by direction of the State action as a sovereign,” id. In such cases the self-executing statute itself plus judicial enforcement satisfies the supervision requirement.
Finally, turning to the copyright preemption challenge, we do not find authority for the argument that state trade regulation which affects distribution procedures and, indirectly, monetary returns from copyrighted property is invalidated implicitly or explicitly by the terms of the Copyright Act, 17 U.S.C. § 101 et seq. or the copyright clause. After thorough analysis, Judge Duncan rejected each of these claims, 496 F.Supp. at 441 — 48. We agree with his decision and his analysis.
III. THE VALIDITY OF THE COMPETITIVE BIDDING GUIDELINES
Competitive bidding for films is not mandatory in Ohio under the statute. It is a method of selling films to exhibitors which may be used by distributors in lieu of negotiations. The Ohio competitive bidding guidelines require disclosure of invitation to bid lists and the bids themselves after they are opened; and if all bids are rejected, the distributor must rebid the film rather than negotiate with exhibitors.
We see no federal constitutional or statutory infirmity in these guidelines. Competitive bidding, like trade screening, has been widely used in the film industry for many years. See United States v. Paramount Pictures, 334 U.S. 131, 161-66, 68 S.Ct. 915, 931-933, 92 L.Ed. 1260 (1948). If the distributor chooses to use this method of selling, the process should be fair, and that is what the guidelines are designed to insure. The disclosure provisions are not burdensome and are designed to counteract deception and unfair manipulation of the bidding process. The rebidding requirement has a similar purpose. It keeps producers from deceptively putting films out on competitive bid in order simply to test the market without any real intention of licensing the film to the best bidders. The rebid requirement is designed to prevent this misleading trade practice.
The District Court found that the incremental burdens that these provisions placed upon the licensing process are minimal — especially since little change from prevailing bidding practices is required and any delays because of possible rebidding, if they could not be avoided, would be rare. 496 F.Supp. at 438-440. As with the trade screening requirement, therefore, we find that no undue burdens are placed upon the rights of producers and distributors under either the first amendment or the commerce clause. The bidding procedures, like the trade screening requirement, do not interfere with any of the rights of the producer-distributors under the copyright statutes, and do not sanction any collusive behavior that is in violation of the antitrust laws. The open bidding requirements challenged by the producers require the disclosure of all bids after they have been considered. Each film is different, and the availability of information about prior bids does not stabilize prices. Even in subsequent rounds of bidding for the same film, if that should become necessary, the competition among the exhibitors makes price stabilization unlikely. Misuse of price information and collusion among exhibitors is not sanctioned by the Act, and as the District Court points out, such conduct would, of course, be subject to the strictures of the antitrust laws. 496 F.Supp. at 449-450.
IV. THE VALIDITY OF THE PROHIBITION OF ADVANCE AND GUARANTEED PAYMENTS
The statutory pricing prohibition aimed at advance and guaranteed payments stands on less solid ground than the trade screening requirement and the bidding guidelines. The trade screening and bidding provisions foster disclosure of information and fair bidding procedures. Making more information available in the marketplace and increasing the regularity and orderliness of the bidding process leads presumably to more intelligent decision making. The orderly flow of accurate information tends to restrain misleading, fraudulent or otherwise unfair trade practices. The same reasoning does not support the pricing provisions.
Outlawing advance and guaranteed payments when box office receipts are used as a measure of payment appears to be simply a restriction on price. So far as we can tell from the present record, it rests solely on a perceived imbalance in bargaining power between distributors and exhibitors. Judge Duncan found that “primarily the guarantee is ... a risk shifting device.” 496 F.Supp. at 418. He did not identify any other state interest which supports these provisions. We understand this to mean that the statutory purpose is to increase the economic leverage of the exhibitors in order to redress a bargaining imbalance, or in other words, to increase the profits, or reduce the losses, of the exhibitors — who are local — at the expense of the distributors— who are from out of state. Judge Duncan found this state interest sufficient under the commerce clause, in part under the authority of New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 439 U.S. 96, 99 S.Ct. 403, 58 L.Ed.2d 361 (1978), a case upholding as a legitimate state interest under the due process clause an effort to redress the balance of bargaining power of automobile dealers vis-a-vis the manufacturers.
The commerce clause analysis in Baldwin v. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935), appears to be more to the point for purposes of this case. There the Supreme Court was faced with similar pricing regulation of the milk industry in New England. In order to protect the economic welfare of its dairymen, New York enacted a “system of minimum prices to be paid by dealers to producers,” both in-state and out-of-state. The New York statute was drafted in such a way as to be neutral and nondiscriminatory on its face, just as is the Ohio statute, although the purpose of both was to help local interests. On the face of the two statutes, neither class involved (milk producers in Seelig, movie producers in the instant case) are treated differently depending on whether they are in or out of state.
In Seelig, a dealer paid less than the minimum price for milk to his Vermont producers. Justice Cardozo for a unanimous court first recognized the validity of the state’s interest in the welfare of dairymen under the due process clause under the doctrine of Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934). See Seelig, 294 U.S. at 519, 55 S.Ct. at 498. Nevertheless, the Court held the pricing system invalid under the commerce clause:
New York asserts her power to outlaw milk so introduced by prohibiting its sale thereafter if the price that has been paid for it to the farmers of Vermont is less than would be owing in like circumstances to farmers in New York.... Such a power, if exerted, will set a barrier to traffic between one state and another as effective as if custom duties, equal to the price differential, had been laid upon the thing transported.... Impost and duties upon interstate commerce are placed beyond the power of the state, without the mention of an exception, by the provision committing commerce of that order to the power of the Congress.
294 U.S. 521-22, 55 S.Ct. at 499-500.
The Court in Seelig acknowledged that the state could regulate interstate milk for health and safety reasons and to prevent “fraudulent substitution” or other “deceptive” practices. But “price security,” the Court said, is not a state interest under the commerce clause equivalent to “sanitary security.” Id. at 523, 55 S.Ct. at 500. Making “its inhabitants healthy,” Justice Cardozo wrote, is different from making “them rich.” Id. The Court concluded:
[CJommerce between the states is burdened unduly when one state regulates by indirection the prices to be paid to producers in another, in the faith that augmentation of prices will lift up the level of economic welfare....
Id. at 524, 55 S.Ct. at 500.
The principle of Seelig appears to be that our competitive national economy is an equilibrium system of production and consumption, supply and demand, based on price; and in the absence of a strong justification, interference by the states in the pricing system to shift the balance of economic power to producers or dealers, farmers or processors, distributors or exhibitors cannot be permitted when it burdens the flow of interstate commerce. In the instant case we have been presented with no claim or finding of collusion, monopoly power, predatory pricing of similar justification — other than the economic welfare of exhibitors — for a restriction on pricing.
Parker v. Brown, 317 U.S. 341, 364, 63 S.Ct. 307, 320, 87 L.Ed. 315 (1943) and Exxon Corp. v. Governor of Md., 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978) do not support a different analysis under the commerce clause. Although it is true that in Parker the California statute placed severe restrictions on the pricing of raisins, the Court found “significant” under the commerce clause the fact that “the national government has contributed to these efforts either by its establishment of marketing programs pursuant to act of Congress or by aiding programs sponsored by the state.” 317 U.S. at 365, 63 S.Ct. at 320. The negative aspect of the commerce clause does not come into play as a bar when Congress has affirmatively acted to authorize or approve the state conduct in question. In Exxon the Maryland statute preventing vertical integration of certain aspects of the gasoline business did not attempt to interfere or restrict price in the marketplace, and the purpose of the statute was not to redress an imbalance in bargaining power.
Thus we conclude that a state’s interest in righting a bargaining imbalance, standing alone, is not sufficient under the commerce clause to permit direct interference with pricing where it burdens interstate commerce. We remand the case to the District Court for further consideration and fact finding under the test established in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970) respecting the “extent of the burden” on interstate commerce and the question whether any other “legitimate local public interest” is present to support the pricing provisions of the statute under the commerce clause. The test established in Pike v. Bruce Church, supra, is as follows:
Where the [challenged state] statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443. [80 S.Ct. 813, 815, 4 L.Ed.2d 852]. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved and on whether it could be promoted as well with a lesser impact on interstate activities.
397 U.S. at 142, 90 S.Ct. at 847.
In view of our analysis, the best course to follow is to remand this aspect of the case to the District Court for further consideration. We cannot be sure on the basis of the present record whether there are other, as yet unidentified, state interests which support the pricing restriction; and we do not find in the record evidence that would allow us to assess with confidence the nature and “extent of the burden” imposed by the pricing restrictions.
V.
Accordingly, the Court concludes that the judgment of the District Court should be affirmed except for its ruling on subsections (B) and (C) of Section 1333.06 of the Ohio statute. We remand the case to the District Court for further consideration of the validity of these two subsections in accordance with the analysis set out in this opinion.
. The pertinent provisions of the statute are as follows:
§ 1333.05 [Definitions.]
As used in sections 1333.05 to 1333.07 of the Revised Code:
(H) “Trade screening” means the showing of a motion picture by a distributor in one of the five municipal corporations within this state having the largest population which showing is open to any exhibitor interested in exhibiting the motion picture.
(I) “Blind bidding” means ... negotiating ... or agreeing to terms for the purpose of entering into a license agreement prior to a trade screening of the motion picture that is the subject of the agreement.
§ 1333.06 [Certain practices of distributors prohibited; effect on license agreements.]
(A) No distributor shall engage in blind bidding.
(B) No distributor shall condition the granting or execution of a license agreement on a guarantee of a minimum payment to the distributor. If the exhibitor is required by the license agreement to make any payment to the distributor that is based on the attendance or the box office receipts at a theater at which the motion picture is exhibited.
(C) No distributor shall condition the granting or execution of a license agreement on the exhibitor’s advancing, more than fourteen days prior to his first exhibition of a motion picture, any money that is to be used as security of the exhibitor’s performance of the license agreement or is to be applied to any payments that the exhibitor is required by the agreement to make to the distributor.
(D) Any provision of a license agreement that waives any of the prohibitions of, or fails to comply with, this section or section 1333.-07 of the Revised Code is void and unenforceable. Any license agreement that fails to comply with this section and section 1333.07 of the Revised Code is voidable by the exhibitor, if the exhibitor gives the distributor written notice, prior to the exhibitor’s first exhibition of the motion picture that is the subject of the agreement, of his intent to have the agreement voided.
§ 1333.07 [Invitation to exhibitors to bid; inspection, notice.]
(A) If bids are solicited from exhibitors ... the invitation to bid shall specify:
(1) The number and length of runs ...
(3) The geographic area for each run;
(4) The names of sill exhibitors who are being given an invitation to bid____
(B) [The invitation to bid shall include] the date, time, and location of the trade screening of the motion picture that is the subject of the invitation to bid.
(C) Every distributor shall furnish to all exhibitors in this state reasonable and uniform notice of all trade screenings that are held within this state of motion pictures that he is distributing.
(D) All bids shall be submitted to the distributor in written form. The distributor or his agent shall open all bids at the same time and in the presence of at least one of the exhibitors, or the agent of an exhibitor, who has submitted a bid.
(E) Any exhibitor, or the agent of an exhibitor, who submits a bid for a particular run of a motion picture may, at reasonable times within sixty days after the bid is opened, examine any bid that is made for the same run of the motion picture by another exhibitor ... even if the distributor rejects all bids that are submitted. Within seven business days after a bid ... is accepted, the distributor shall notify in writing each exhibitor who submitted a bid for that run of the motion picture of the terms of the accepted bid and the identity of the successful bidder....
(F) If a distributor issues invitations to bid for a motion picture, he shall not enter into a license agreement for the exhibition of the motion picture except by means of the bidding process specified in this section. If the distributor rejects all bids submitted pursuant to an invitation to bid, he shall notify all exhibitors who submitted bids that he rejected all bids and shall issue a new invitation to bid.
. The states which had enacted similar statutes as of mid-1981 include Alabama, Georgia, Idaho, Louisiana, Maine, Massachusetts, Missouri, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Virginia, Washington, West Virginia. See Joint App. at C-166.
All of these states prohibit blind bidding. Thirteen states of the eighteen states have also adopted detailed provisions regulating the bidding process: Alabama, Louisiana, Maine, Massachusetts, Missouri, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Virginia, Washington, West Virginia. Four states (Idaho, Utah, Oklahoma and Pennsylvania) have chosen to restrict guarantees and only two (Idaho and Pennsylvania) have restrictions on advances.
The Ohio statute which contains all three restrictions is among the more restrictive statutes. The Pennsylvania statute (more restrictive than Ohio’s) was held by a district court to be invalid under the first amendment and violative of federal rights secured by the copyright laws. Associated Film Dist. Corp. v. Thornburgh, 520 F.Supp. 971 (1981). By contrast, a challenge to Utah’s proscription of guarantees was rejected by the district court on the grounds that no significant burden was placed on first amendment rights or upon interstate commerce. Warner Bros. v. Wilkinson, 533 F.Supp. 105 (C.D.Utah 1982).
. See Bates v. State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), and the discussion of those cases in Midcal, 100 S.Ct. 943; see also Areeda, Antitrust Immunity for “State Action” after Lafayette, 95 Harv.L.Rev. 435, 436-440 & 445 n.50 (1981); Posner, The Proper Relationship Between State Regulation and the Antitrust Laws, 49 N.Y.U.L.Rev. 693 (1974).
. The producers argue that the Ohio motion picture licensing statute is preempted (1) by the express terms of § 301 of the Copyright Act, 17 U.S.C. § 301, (2) because it interferes with distribution rights granted by § 106 of the Copyright Act, and (3) with the purposes of copyright law as embodied in copyright clause, Art. I, § 8.
. The plaintiffs brought this action for declaratory and injunctive relief against Governor Rhodes of Ohio. In a cross-appeal the Governor renews his contention that he is immune from suit under the eleventh amendment. As the District Court noted in its thorough study of the issue, 473 F.Supp. 560, 556-570; 496 F.Supp. 408, 429-27, the question whether the Governor has exceeded the scope of the eleventh amendment immunity accorded to state officials is controlled by Ex Parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-154, 52 L.Ed. 714 (1908). Young requires that the state officer sued have “some connection” with the enforcement of the allegedly unconstitutional Act. Even in the absence of specific state enforcement provisions, the substantial public interest in enforcing the trade practices legislation involved here places a significant obligation upon the Governor to use his general authority to see that state laws are enforced, see Ohio Constit. Art. Ill, § 6; Ohio Rev.Code Ann. § 2733.02 (Page 1981) (concerning equitable actions against corporations violating state laws). We thus find that the Governor has sufficient connection with the enforcement of the Act that he falls outside the scope of eleventh amendment protection and may be sued for the declaratory and injunctive relief requested here. Were this action unavailable to the plaintiffs, they would be unable to vindicate the alleged infringement of their constitutional rights without first violating an Ohio statute requiring a significant change in their business conduct. Such a result is clearly what the doctrine in Ex Parte Young was in part designed to avoid.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_appel2_7_5
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Mike DOLL, Ronald Elbon and Kent Langworthy, Plaintiffs-Appellants, v. GRAND UNION COMPANY, Defendant-Appellee.
No. 89-8682.
United States Court of Appeals, Eleventh Circuit.
March 11, 1991.
Walter B. Russell, Jr., Russell & Russell, Decatur, Ga., for plaintiffs-appellants.
Michael Smith, Ralph Allen Pitts, King & Spalding, Atlanta, Ga., for defendant-appel-lee.
Before TJOFLAT, Chief Judge, ANDERSON, Circuit Judge, and ESCHBACH, Senior Circuit Judge.
Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation.
TJOFLAT, Chief Judge:
The appellants, Mike Doll, Ronald Elbon, and Kent Langworthy, are partners in a real estate development business in Atlanta, Georgia. The Grand Union Company, the appellee, owns and operates a chain of supermarkets, the Big Star Food Stores. The appellants brought this suit against the appellee after it refused to sign a lease for a food store in a shopping center they were trying to develop and the project failed. Advancing several theories of liability, the appellants sought to recoup the money they had spent on the project and lost, and the rent the appellee would have paid them had it signed the lease. The district court found no merit in any of their theories, and granted the appellee summary judgment. We affirm.
I.
A.
In 1984, the Grand Union Company (Grand Union) conducted a marketing survey of the greater Atlanta area. Based on this survey, Grand Union concluded that the intersection of Memorial Drive and Hairston Road in Dekalb County offered an ideal location for a new Big Star Food Store. Raymond Ayers, a vice president at Grand Union, asked one of his former employees, Lewis Allen, to contact the developers in the area who might be interested in building a shopping center at that location, with Grand Union as the primary tenant. One of the people Allen contacted was an individual named Frederick Ross. Ross was a friend and former business associate of appellant Mike Doll; at the time, Doll and appellants Ron Elbon and Kent Langworthy, as partners, were operating a real estate development firm, Great South Realty. Ross, Doll, and Doll’s partners liked Allen’s proposal and decided to join forces, acquire the land at the Memorial Drive and Hairston Road intersection, and build the shopping center; they called themselves, and their venture, the Hairston Run Partners (the partners or the partnership).
The land needed for the shopping center consisted of several parcels. The partners promptly contacted the owners of these parcels and, after a period of several months, obtained options to purchase their land. The partners entered into these contracts without a binding commitment from Grand Union to lease space in the proposed shopping center; in fact, all they had from Grand Union was an “indication of interest” in having a food store there.
Although the two sides differ in their characterizations of the strength of Grand Union’s interest in locating at the shopping center, it is clear that at the very least Grand Union indicated a strong desire to lease space in the facility and that the partners regarded Grand Union as their lead or anchor tenant. It is also clear that, until May 1986, the parties’ discussions were merely preliminary in nature, dependent on the resolution of several issues, and that, as Ayers informed Ross, who was negotiating the lease for the partnership, Grand Union’s real estate board would have to approve the deal before Grand Union could proceed. The key issue to be resolved was access to Grand Union’s food store. For the food store to be successful, it was imperative that the store’s customers be able to turn left easily from Memorial Drive into the store and from the store onto Memorial. At the time, the Memorial Drive and Hairston Road intersection was not controlled by a traffic signal, making such entry and exit difficult.
On May 22, 1986, Ayers sent a letter to Ross notifying him that Grand Union’s real estate board had approved the project. The letter contained some of the basic provisions of the agreement negotiated by the parties up to that point, including the size of the store, the term of the lease and renewal option, and the rent. The letter also noted that the board’s approval was subject to three contingencies, one of which concerned the satisfactory resolution of the automobile access issue, and it concluded by stating that “[t]he above is subject to the resolution of a mutually agreeable lease document and its execution by both the partnership and Grand Union.”
Grand Union admits that these contingencies were ultimately resolved by the parties. The negotiations over the specifics of the lease agreement, however, bogged down — resulting in considerable delays in the completion of an acceptable draft. As a result, a final draft of the lease agreement could not be completed until early December 1986; on December 4, Neill Thompson, Grand Union’s regional real estate manager, mailed his last revisions of the agreement to the partners, stating “I am sure you share my relief in a final resolution on this document.”
Before the partners had an opportunity to incorporate these revisions into the lease and sign it, the Georgia Department of Transportation (DOT) announced a plan to build a concrete median down the middle of Memorial Drive, which would block access to the shopping center. The parties learned of the DOT’s plan sometime in early December, just after Thompson sent his final revisions to the partners. In the weeks that followed, the partnership attempted to gain DOT approval for a median cut to allow traffic to cross Memorial Drive and enter the shopping center. Meanwhile, Grand Union entered into discussions with another group of developers to secure space in a shopping center they planned to build just across Hairston Road. This site would have access from Hairston Road and thus a food store there would not be as adversely affected by the construction of a median. On January 26, 1987, while the partners were still trying to secure approval for a cut in the median, Ayers sent a letter to the partnership informing it that, because of the problems caused by the DOT’s plan, Grand Union could no longer proceed with the deal. The partners, already encountering some financial difficulties, attempted to find another lead tenant to replace Grand Union or, if they were unsuccessful, another developer to take over the project. When these efforts failed, they brought this suit against Grand Union — to recover the losses they had sustained as a result of its refusal to sign a lease.
B.
In their complaint, the partners asserted three theories of recovery. First, in count one, they maintained that, although the parties failed to sign a formal lease agreement, they entered into an agreement to sign a lease, which, under Georgia law, created a binding obligation to abide by the terms of the lease they intended to sign. Second, the partners claimed that Grand Union’s repeated indications of interest in making a lease constituted a promise on which they relied to their detriment, a promise which, they suggest, is enforceable under the doctrine of promissory estoppel. Finally, in count three, the partners alleged that, unlike the typical shopping center development project, they prepared this site specifically for Grand Union and that during the course of the nearly year and a half of negotiations a confidential relationship resulted which created a duty of good faith; Grand Union purportedly breached this duty when it backed out of the project. As damages, the partners asked for $550,-000 to compensate them for the sums they expended in developing the shopping center site and, in addition, $4.5 million to compensate them for the profits they would have earned under the lease with Grand Union.
Grand Union answered the partners’ complaint with a general denial of liability and, as an affirmative defense, asked that the complaint be dismissed for failure to state a claim for relief. Following discovery, Grand Union moved for summary judgment. The district court granted its motion. The court rejected the partners’ argument, advanced in support of count one, that Ayers’ May 22 letter to Ross constituted an agreement to make a lease; in the court’s view, the letter was not meant to serve as a contract in and of itself, but was, instead, designed merely to formalize Grand Union’s expression of interest without creating a binding obligation. With respect to count two, the court concluded that Ayers’ statement in the letter — that the real estate board’s approval of the project was “subject to the resolution of a mutually agreeable lease document and its execution” by the parties — made the partners’ reliance on the letter as a promise unreasonable. Finally, as for count three, the court found no merit in the partners’ argument that the dealings between the parties and the existence of a common goal created a relationship of mutual confidence and a duty of good faith. Following the entry of final judgment for Grand Union, the partners took this appeal.
II.
A.
In count one of their complaint, the partners alleged that the combination of correspondence and oral communication between the parties resulted in the formation of an agreement to lease the property on the northwest corner of Memorial Drive and Hairston Road. Although they admit that Grand Union never specifically promised to execute a lease, they contend that there was sufficient evidence from which a jury could infer the existence of such an agreement.
The principal piece of evidence relied on by the partners is the May 22, 1986 letter written by Grand Union’s vice president, Raymond Ayers. The letter informed them that the real estate board at Grand Union had approved the proposed shopping center site, and it set forth the terms of an acceptable lease. These terms essentially echoed those stated in a May 7, 1986 letter that Doll wrote to Grand Union.
The partners also rely on what they describe as numerous occasions on which Grand Union expressed its desire to enter into a lease agreement with them. At one point, the partners apparently felt that the risks inherent in the project were simply too great to proceed without a strong commitment from Grand Union. Ross therefore went to Ayers to try to obtain a less equivocal statement of Grand Union’s intent. Ayers apparently told him that although the partners would have to analyze the risks on their own, he felt certain that Grand Union could make the deal worthwhile for them. When, subsequently, Ross sought financial assistance for the partnership from an old business associate, Tom Kennedy, Kennedy called Ayers and Ayers assured him that Grand Union had every intention of reaching an agreement with the partners. Taken as a whole, the partners maintain that this evidence created an agreement to sign a lease.
Grand Union responds by contending that the May 22 letter and the many oral communications that preceded and followed it constituted, at best, an agreement to agree. They note that while the basic terms of the formal lease agreement were set out in Ayers’ May 22 letter, numerous contractual issues remained to be resolved. In fact, at several points during the partners’ discussions, they encountered issues on which there was serious disagreement. Over the nearly six months of negotiations, a “gillion” drafts of the lease were exchanged. Grand Union suggests that such evidence demonstrates that the parties clearly did not intend to be bound, as of May 22, 1986, by their preliminary discussions, but instead envisioned the continuation of negotiations leading to a mutually acceptable lease agreement. Grand Union points to clear authority in Georgia which holds that agreements to agree or preliminary statements of intent to contract in the future are unenforceable. See, e.g., Hartrampf v. Citizens & S. Realty Investors, 157 Ga.App. 879, 278 S.E.2d 750, 752 (1981) (unless agreement leaves nothing to future negotiations it is unenforceable); Nuclear Assurance Corp. v. Dames & Moore, 137 Ga.App. 688, 225 S.E.2d 97, 98 (1976) (agreements to negotiate in future are not binding); Malone Constr. Co. v. Westbrook, 127 Ga.App. 709, 194 S.E.2d 619, 620 (1972) (same); Russell v. City of Atlanta, 103 Ga.App. 365, 119 S.E.2d 143, 144 (1961) (same). Grand Union maintains that the parties were merely sketching the outlines of an agreement and clearly did not come to an understanding on all the terms of the lease. Unless all the terms were finalized, Grand Union contends that no agreement can be found. See American Viking Contractors v. Scribner Equip. Co., 745 F.2d 1365, 1369-70 (11th Cir.1984) (in Georgia, unless all terms and conditions are agreed upon, no binding obligation arises).
The partners, however, suggest that the case law cited by Grand Union is not applicable to agreements to lease. They maintain that in order to enforce such agreements, the parties need only specify the essential terms of the lease. A meeting of the minds need not be reached as to every provision. An agreement to execute a lease, they note, is not intended to be the lease itself, but is instead designed to express the intentions of the parties as to the essential terms of a lease to be executed in the future. Indeed, the Georgia courts have unambiguously held that such agreements are enforceable despite the parties’ failure to sign an actual lease containing the details of the agreement. As long as the court can extract the essential terms of the lease from the contract to sign the lease, the contract will be enforced.
In Kaplan v. Krantz, 202 Ga. 194, 42 S.E.2d 371 (1947), for example, the Supreme Court of Georgia enforced a contract to sign a lease that had not been executed. The plaintiff in that case purchased a store from the defendant. In the contract of sale, the plaintiff received an option to lease the property adjoining the store for a period of three years at a specified rent. When the plaintiff sought to exercise the option, however, the defendant refused to sign a lease. The court held that it would enforce the agreement as long as the essential terms of the lease were evident from the contract; an executed lease form was not necessary. Id. 42 S.E.2d at 373.
The facts in Shell Petroleum Corp. v. Jackson, 47 Ga.App. 667, 171 S.E. 171 (1933), bear a remarkable resemblance to the present situation. The plaintiffs in that case owned a piece of property on which the defendant wished to build a service station. The plaintiff made two proposals to the defendant, both of which granted the defendant a ten-year lease but on slightly varying terms. The defendant accepted one of the proposals, and the plaintiff began to clear the site for construction. The plaintiff then prepared and signed a lease incorporating the basis of their agreement and forwarded it to the defendant. The defendant, however, maintained that upon closer analysis it had determined that the rent was too high, and it refused to sign the lease. The court concluded that the parties reached an agreement to lease and the defendant’s refusal to sign the lease constituted a breach of that agreement. See also Matlock v. Duncan, 220 Ga. 200, 137 S.E.2d 661, 663 (1964) (oral agreement to lease specified consideration, subject matter, and purpose and thus was enforceable despite parties’ failure to execute completed lease agreement); Merry v. Georgia Big Boy Management, Inc., 135 Ga.App. 707, 218 S.E.2d 694, 696 (1975) (oral agreement to lease contained essential terms and was enforceable despite failure to sign written lease). The approach taken by the Georgia courts in this area is not without support elsewhere in the nation. See, e.g., 51C C.J.S. Landlord and Tenant § 190 (1968 & Supp.1990); Annotation, Requirements as to Certainty and Completeness of Terms of Lease in Agreements to Lease, 85 A.L.R.3d 414 (1978).
Naturally, the partners contend that the written and oral communications between the parties clearly articulated the essential terms of their understanding. By concentrating on the level of specificity required to create a binding lease agreement, however, the partners have ignored the primary question concerning whether the parties intended that their preliminary negotiations create a binding legal obligation. Unless the parties intended to be bound by the statements they made during these negotiations, they did not enter into a contract to sign a lease. Every possible provision of a contemplated lease may be discussed and agreed upon, but unless the parties intend that these discussions be binding, no contract has been formed. When the parties express their intention to be bound and they specify the basic terms of the lease, the courts will enforce the contract, and thus the lease, to avoid frustrating the parties’ original intent. When such indications of intent are absent or are explicitly disavowed, however, the justification for enforcing the proposed lease is wholly absent. The court does not address the terms of the proposed lease until it has satisfied itself that the parties did indeed intend to be bound. See Gunderson & Son, Inc. v. Cohn, 596 F.Supp. 379, 383 (D.Mass.1984) (under Massachusetts law, whether parties are bound by informal initial agreements is question of intent); cf. John Bleakley Ford, Inc. v. Estes, 164 Ga.App. 547, 298 S.E.2d 270 (1982) (although both parties intended agreement to be binding, agreement was unenforceable as parties failed to specify essential terms).
The partners acknowledge that, unlike the cases on which they rely, Grand Union never explicitly promised to sign a lease. Instead, they suggest that an agreement to sign a lease can be inferred from the circumstances surrounding the discussions between the parties. Such an inference, however, is entirely unwarranted in light of Grand Union’s clear and unambiguous expression of its intention not to bound. The May 7 letter from Doll to Ayers requested that Ayers sign and return the letter indicating his consent to the terms contained therein. Such a letter, signed by Ayers, could conceivably represent the requisite indication of intent to be bound and could therefore create an agreement to sign a lease. See, e.g., Chase v. Consolidated Foods Corp., 744 F.2d 566, 571 (7th Cir.1984) (under Illinois law, letter of intent could serve as enforceable contract if parties so intended). Ayers, however, never signed the letter. Furthermore, the letter Ayers sent to the partnership on May 22 unmistakably stated that Grand Union did not intend to be bound by any of the terms announced in the letter until a complete and final lease agreement had been signed by the parties. In fact; every version of the lease exchanged between the parties included a clause which stated that the lease would not become final until it had been fully executed.
The former Fifth Circuit faced a similar situation in Dumas v. First Federal Savings & Loan Association, 654 F.2d 359 (5th Cir. Unit B Aug. 1981) (applying Georgia law). The plaintiff in Dumas alleged that a letter which contained the details of a proposed purchase and which was initialed by both parties created a binding contract. The letter stated that it was to “act as the basic agreement, subject to a mutually acceptable Purchase and Sale Agreement.” The court concluded that the defendant clearly did not expect that it would be bound by the terms in the letter in light of the language conditioning a final agreement on the execution of a mutually acceptable contract. Although Dumas did not involve an agreement to lease and the court did place emphasis on the fact that all terms and conditions must be agreed upon under traditional principles of Georgia contract law, the court’s analysis of the conditional nature of the letter is still instructive. Language which conditions the terms discussed on the execution of a finalized document relates directly to the intentions of the parties. The fact that the Dumas court required that every term be agreed upon rather than simply the essential terms does not affect its analysis of the preliminary issue concerning intent. As that court stated: “The letter agreement states on its face that it is subject to a later, ‘mutually acceptable’ agreement; the provision can only mean that the parties did not intend the letter agreement to be a binding, enforceable contract.” Id. at 361 (emphasis added); see also In re Harvey Probber, Inc., 50 B.R. 292 (Bankr.Mass.1985) (letter between lender and borrower did not create contractual relationship where letter also indicated intention not to be bound until completed contract executed).
There is evidence in the record to suggest that even the partners realized that Grand Union had not committed itself. Doll, in his deposition, stated that he had been dissatisfied with Ross for his failure to finalize an agreement with Grand Union and other tenants. His dissatisfaction and discomfort suggest that he knew that without a completed lease agreement the partnership would be exposed to considerable risk. It certainly was not impossible for a lease agreement to be concluded prior to the time the partnership put down its largest nonrefundable earnest-money payment on the land it had contracted to purchase or before it obtained financing from Tom Kennedy. In fact, although there is some dispute in the record concerning this point, Ross stated that a lease had been completed with another lessee, General Cinema, contingent only on the finalization of the agreement with Grand Union. Moreover, Doll stated that it had been the intention of the partners to have all such leases completed well before the nonrefundable development costs had been incurred to provide what he described as a “comfort factor.” The partners, therefore, knew that without a signed lease they could not be sure that the deal would go through, and although Grand Union did indeed express its willingness and desire to proceed with the project, it steadfastly maintained that it would not be bound until an agreement had been signed. The partners cannot contend that despite these specific statements to the contrary, the parties actually entered into an agreement to sign a lease. See also Hartrampf, 278 S.E.2d at 752 (“Where it is evident from a written instrument, that the parties contemplated that it was incom-píete, and that a binding agreement would be made subsequently, there is no agreement.”) (quoting Board of Drainage Comm’rs v. Karr & Moore, 157 Ga. 284, 121 S.E. 298 (1923)); Russell, 119 S.E.2d at 144 (where facts reveal that parties did not intend to be bound until contract signed, court will not enforce agreement).
Courts are often willing to infer terms and conditions in contract analysis if certain factual predicates are present. Courts will even enforce an unexecuted agreement if it appears that the parties have expressed their assent. See Barton v. Chemical Bank, 577 F.2d 1329, 1336 (5th Cir.1978) (whether oral contract may be enforceable even when parties contemplate execution of written agreement is question of intent). In such a situation, the court is merely enforcing what the evidence suggests was the intent of the parties. Yet, when the parties make their intentions clear, there is no basis for a court to step in and contradict their explicit desires. A court surely would not infer consent to an unsigned agreement when the parties clearly predicated a binding agreement only on the actual execution of the contract. So here we are unwilling to allow a jury to infer an agreement to sign a lease when one of the parties specifically declared its intention not to be bound until a lease was drafted and signed by both parties.
B.
The partners also claim that the trial court erred in granting Grand Union summary judgment on their promissory estop-pel claim. They maintain that even if we are unwilling to find that Grand Union breached a contractual obligation, we should conclude that the equitable doctrine of promissory estoppel renders Grand Union liable.
The Georgia legislature adopted the doctrine of promissory estoppel as articulated in section 90 of the Restatement (Second) of Torts in 1981. See Ga.Code Ann. § 13-3-44(a) (1982). Georgia courts, however, had utilized the doctrine long before this time. See, e.g., Insilico Corp. v. First Nat’l Bank, 248 Ga. 322, 283 S.E.2d 262 (1981) (citing precodification cases). To prevail on a promissory estoppel claim, a plaintiff must demonstrate that (1) the defendant made certain promises, (2) the defendant should have expected that the plaintiff would rely on such promises, and (3) the plaintiff did in fact rely on such promises to his detriment. See Ga.Code Ann. § 13-3-44(a).
Essentially, the partners support their promissory estoppel claim with the same evidence they used to support their breach of an agreement to lease claim. Again, they admit that Grand Union made no explicit promises but maintain, instead, that the record as a whole presents sufficient evidence of assurances by Grand Union to justify their reliance. Ross testified, on deposition, that Grand Union constantly reiterated its interest in the property; when, for example, he told Grand Union that the partnership had doubts about proceeding with the project, Ayers told him that Grand Union would “make the economics work out.” Most importantly, the partners, as they repeatedly stated in their depositions, believed the May 22, 1986 letter from Ayers constituted a letter of intent and thus a promise to enter into a lease. Although the partners had incurred some initial expenses prior to receiving that letter, it is obvious that they would not have proceeded with the project in the absence of what they perceived as a promise to conclude a lease agreement. In the aggregate, this evidence is more than sufficient to create a jury issue as to whether a promise was made by Grand Union.
More problematic, however, is the question of the reasonableness of the reliance the partners placed on this alleged promise. Central to the resolution of this issue is a determination of the significance to be given to the conditional language contained not only in Ayers’ May 22 letter but in each draft of the lease as well. These documents clearly articulated Grand Union’s desire not to be bound until the final draft of a lease was executed.
In an endeavor to convince us that the partners’ reliance on its statements of intent was not reasonable, Grand Union attempts to fabricate a rule that finds promissory estoppel inapplicable to agreements to agree and other unenforceable quasi-contractual agreements. To do so, it relies on a hodgepodge of equitable estoppel eases, fraud cases, and a unique promissory estoppel rule that clearly applies only in the context of insurance contracts. According to Grand Union, this “powerful and consistent line of state and federal Georgia cases” holds that agreements to agree can never, as a matter of law, support a promissory estoppel claim. This illusory doctrine is created by taking quotations out of context and by simply deleting references to the actual body of law the court was addressing in order to create the impression that the quotations used apply to the doctrine of promissory estoppel. Grand Union urges the court to find that unless the agreement between the parties is legally enforceable, promissory estoppel is an inappropriate avenue for recovery. Such a holding would utterly eviscerate the doctrine of promissory estoppel which was designed specifically to address cases where the plaintiff has no legally enforceable rights but has suffered a loss due to reliance on the defendant’s promises. See 20/20 Vision Center, Inc. v. Hudgens, 256 Ga. 129, 345 S.E.2d 330, 335 n. 7 (1986) (doctrine provides avenue of recovery when legal impediments would otherwise prevent plaintiff from pursuing cause of action).
What the cases cited by Grand Union do hold is that certain promises may be so vague and uncertain that reliance on them would not be reasonable. See, e.g., American Viking, 745 F.2d at 1372. That is clearly not the case here. The partners have argued, and Grand Union has not seriously disputed, that the essential terms of their contemplated lease agreement were set out in the May 22 letter. Surely a promise premised on such explicit terms is certain enough to survive this hurdle, and it cannot be said that the letter, taken together with the other oral promises and assurances Grand Union purportedly made, was too indefinite or uncertain to make reliance reasonable. Clearly, some agreements to agree or promises from one party to another are so sketchy or general that a finding of reasonable reliance would be unwarranted. Here, however, the promise made by Grand Union is far more than a general statement of intent.
Although we are unwilling to lay down any general rule prohibiting promissory es-toppel claims in the context of agreements to agree, the partners still must demonstrate that they acted reasonably in relying on Grand Union’s statements. This is not an easy task in light of the company’s repeated caveats that it did not intend to be bound until a final lease agreement was signed. This type of conditional language is different from a mere agreement to agree. Parties may indicate their intention to complete an agreement in the future without conditioning their position on the execution of a formalized document. In fact, it appears wholly contradictory to assert that Grand Union “promised” to sign a lease while simultaneously insisting that only a completed document would serve to bind it. The question, therefore, is whether it was reasonable for the partners to rely on Grand Union’s assurances in light of this condition.
The partners claim that the decision of the Georgia Supreme Court in 20/20 Vision Center, Inc. v. Hudgens, 345 S.E.2d 330, 335 (Ga.1986), indicates that the presence of such conditional language does not prevent a finding of reasonable reliance. As they note in their brief, however, promissory estoppel claims are extremely fact-specific and are not susceptible to the application of generalized rules. In Hudgens, the plaintiffs had already negotiated the major terms of the lease and had exchanged drafts with the defendant before the latter’s attorney began emphasizing that the terms set out in the letters between the parties were “subject to negotiation, execution and delivery of a written lease.” In addition, a similar clause in the lease itself was only inserted in the final drafts of the agreement. Although the Georgia Supreme Court did not analyze the facts in any detail, it appears that the court reversed the grant of summary judgment because the plaintiffs had already relied on the defendant’s promises before the conditional language began to appear. In addition, the plaintiffs in Hudgens did not even raise a promissory estoppel claim at the trial court level. Although the supreme court stated that there were “triable issues of fact” under the doctrine of promissory estoppel, its holding technically was not a reversal of the trial court’s grant of summary judgment, but a remand for consideration of the case under a promissory estop-pel theory. Presumably, the trial court would have been justified in dismissing the case on remand as long as it explicitly addressed the feasibility of a promissory estoppel claim.
In this case there is simply no basis for the contention that the partners’ reliance was reasonable. To hold otherwise would render potential tenants like Grand Union incapable of protecting themselves against liability during the course of negotiations. It is difficult to imagine what else Grand Union could have done to pursue the project in this case while simultaneously avoiding being bound until a lease was signed. To allow a promissory estoppel claim to proceed in this context would be to allow equity to denigrate a term expressly bargained for between the parties. It is important to remember that this clause also had an upside for the partners as well. If during the course of negotiations, another grocery chain had offered the partnership a higher rent than Grand Union, they would have been free to accept it.
Grand Union did indeed make promises to the partners. It promised them that it was interested in leasing space in their development. It promised them that it planned to pursue negotiations. It promised them that it had every intention of finalizing an agreement with them. What Grand Union also made clear was that despite its interest in the site and its desire to consummate a long-term lease, it had no intention of becoming obligated until the lease was drafted, approved, and signed by both parties. The partners’ reliance on Grand Union’s statements of intent in light of their conditional nature clearly was unreasonable. See Protective Life Ins. Co. v. Robinson, 193 Ga.App. 316, 387 S.E.2d 603, 605 (1989) (promissory estoppel does not transform a conditional promise into an unconditional promise).
Even if we were to find that Grand Union made a promise to sign a lease and that the partners’ reliance was reasonable, we still would not find in their favor. Promissory estoppel is an equitable doctrine designed to prevent the intricacies and details of the law from frustrating the ends of justice. The Georgia statute provides that promises that reasonably induce reliance are binding “if injustice can be avoided only by enforcement of the promise.” Ga.Code Ann. § 13-3-44(a) (emphasis added). In this case, Grand Union pursued a lease for this property with genuine enthusiasm. Its decision to pull out of the negotiations was due not to bad faith, but to the occurrence of an independent event, unforeseen by either party, which destroyed one of the essential elements of the negotiation — access to the shopping center. The DOT’s plan dramatically altered the context in which the parties had negotiated an agreement and undermined the basis of the bargain Grand Union thought it would receive. The partners knew all along that automobile access to the shopping center was crucial to the deal. In fact, it appears that the partners knew that the deal was in peril as soon as the DOT’s plan was announced.
In an equitable action such as count two, the question is who should be responsible for bearing the burden caused by this unforeseen event. Grand Union appears to have protected itself from just such a contingency by subjecting its approval of the deal to the execution of a mutually acceptable lease. When the parties have apportioned the risk among themselves, a court should be hesitant to step in and contravene their explicit agreement. Due to an unforeseen event outside the control of either party, one party must bear the burden. Either Grand Union is forced to occupy a mall with substantially decreased access or the partners are required to find another tenant. In this case, where neither party is to blame, we are content to let the burden remain with the partners.
C.
Finally, the partners claimed that during the year and a half of negotiations with, and attempts to find a site for, Grand Union, a confidential relationship developed between the parties which was breached when Grand Union backed out of the deal. The partners maintain that the parties were engaged in a mutual endeavor with the shared goal of finding a site and constructing a shopping center for Grand Union’s use. Georgia law defines confidential relations as follows:
[WJhether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.
Ga.Code Ann. § 23-2-58 (1982).
While we accept, as the partners contend, that a “confidential relationship may exist between businessmen,” Cochran v. Murrah, 235 Ga. 304, 219 S.E.2d 421, 423 (1975), the facts of this case simply do not support any such finding. The parties fought over the terms of the lease agreement for approximately six months. This type of arms-length bargaining and the creation of a landlord-tenant relationship does not meet the requirements for finding a relationship of mutual confidence. Indeed, both parties had the same goal in this case, and they worked together to achieve it. But if that were the requirement for the formation of a confidential relationship, then most business transactions would qualify. Much more than a common goal is necessary to impose an obligation of good faith under section 23-2-58 of the Georgia Code.
III.
The district court appropriately concluded that the parties did not enter into an agreement to lease. To hold otherwise would ignore Grand Union’s stated intention not to be bound until both parties executed a lease agreement. Similarly, summary judgment was properly granted on the partners’ promissory estoppel claim. The partners’ reliance
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
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songer_casetyp1_7-3-2
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
PEERLESS INSURANCE COMPANY, Appellant, v. Joan SCHNAUDER and Patricia Schnauder, thru Joyce Schnauder Ernest, Their Next Friend, Appellees.
No. 18600.
United States Court of Appeals Fifth Circuit.
May 19, 1961.
William A. Porteous, Jr., New Orleans, La., Porteous & Johnson, New Orleans, La., for appellant.
Herman M. Schroeder, Richard A. Kuntz and Hattier, Schroeder & Kuntz, New Orleans, La., for appellees.
Before TUTTLE, Chief Judge, JONES, Circuit Judge, and MIZE, District Judge.
JONES, Circuit Judge.
Suit was brought under the Louisiana Direct Action Statute by the appellees, Joan Schnauder and Patricia Schnauder, against the appellant, Peerless Insurance Company, the insurer of Charity Hospital in New Orleans, Louisiana, under a public liability policy. The appellees, who were plaintiffs below and who will be so designated here, claimed damages for the death of their mother as a result of a collision betwen a Jeep owned by Charity Hospital and driven by its employee, William Ganaway. Peerless made a motion for a directed verdict at the close of the plaintiffs’ case and a like motion at the conclusion of the entire case. These motions were denied. A jury verdict was returned for the plaintiffs in the amount of $1,000.00 for Joan Schnauder and $9,000.00 for Patricia Schnauder. Peerless made and the court overruled a motion for .'a judgment notwithstanding the verdict. Judgment on the verdict was entered and this appeal is from that judgment.
William Ganaway was employed by Charity Hospital as a mechanic’s helper. Among the motor vehicles owned and used by the Hospital was a Jeep. Among the duties sometimes performed by Gan-away was the changing of tires and other servicing of vehicles away from the garage, and when assigned to such tasks, he would be directed to use the Jeep. On the Sunday morning of December 21, 1958, Ganaway was, or was supposed to be, on duty at the Charity Hospital garage. On that morning, about nine o’clock, the Jeep, while being driven by Ganaway along Gravier Street, in New Orleans, collided at the intersection of Gravier and South Roman Streets, with a 1955 Dodge car being driven by its owner, Manuel Powe. In the Jeep with Ganaway was Lillian Schnauder, mother of the plaintiffs. She was employed at Morrison’s Cafeteria, on Gravier Street. Mrs. Schnauder received injuries in the collision from which she died three days later. Ganaway also died as the result of his injuries. The plaintiffs surmised that Ganaway saw Mrs. Schnauder and picked her up to give her a lift on her way to work. Peerless conjectured that Ganaway had taken the Jeep from the Hospital garage for the purpose of taking Mrs. Schnauder to her place of employment. The plaintiffs asserted that their mother’s injury and death were the result of the negligence of Ganaway, the employee of the Hospital which was insured by Peerless. The defendant, Peerless, denied that Ganaway was negligent and asserted that Ganaway’s use of the Jeep on the day of the collision was unauthorized and without the consent of the insured owner, and that Ganaway was not, at the time of the accident, acting in the scope and course of his employment. Both of these issues were resolved by the jury for the plaintiffs.
The liability of Peerless is dependent upon whether Ganaway was an “insured” under the omnibus clause of the policy which included any person while using the automobile, provided the actual use was with the permission of the named insured. The courts of Louisiana have gone far in extending coverage under the omnibus clauses of insurance policies. Gonzalez v. National Surety Corporation, 5 Cir., 1959, 266 F.2d 667. Under the liberal view which obtains in Louisiana, if there is initial permission for the use of the vehicle, the coverage of the insurance attaches even though the liability arises out of a subsequent use for an unauthorized or unintended purpose. Parks v. Hall, 189 La. 849, 181 So. 191; Waits v. Indemnity Insurance Co. of North America, 215 La. 349, 40 So.2d 746; Dominguez v. American Casualty Co., 217 La. 487, 46 So.2d 744. But it does not follow that, under all circumstances, a person injured or the representatives of a person killed would have a cause of action under the omnibus clause against the insurer for injuries or death caused as a result of the negligent operation of the vehicle. Parker v. Great American Indemnity Co., La.App., 81 So.2d 79. So, if Ganaway had permission, express or implied, to take the Jeep from the garage of his employer on the morning of the fatal accident, that permission would be continued and extended while the vehicle was being used in excess of the authority given or in violation of the employer’s rules. Hartford Accident & Indemnity Co. v. Collins, 5 Cir., 1938, 96 F.2d 83, certiorari denied 305 U.S. 627, 59 S.Ct. 89, 83 L.Ed. 401. There is not any evidence in the record before us showing that Ganaway had any permission to use the Jeep on that morning. The plaintiffs contend that where a car is driven by an employee of the owner, a presumption arises that the employee was acting in the scope of his employment at the time of the accident. For this proposition the plaintiffs refer us to Antoine v. Louisiana Highway Commission, La.App., 188 So. 443. While there may be such a presumption applicable in a case asserting liability against the owner of a motor vehicle, and Antoine was such a case, it is the rule that in a suit on the omnibus clause of an automobile liability policy the plaintiffs have the burden of producing evidence that the vehicle was being used with the permission of the insured owner. Abshire v. Audubon Insurance Co., La.App., 99 So.2d 395; Standard Accident Insurance Co. v. Rivet, 5 Cir., 1937, 89 F.2d 74; Continental Casualty Co. v. Quebedeaux, 5 Cir., 1956, 234 F.2d 241. There is, as is pointed out in the Rivet opinion, a difference between a master and servant case and one asserting an insurance liability.
There was evidence from which it might have been inferred that Ganaway had general authority to take the Jeep out for the purpose of servicing ambulances and other vehicles and for procuring repair parts. It is suggested by the plaintiffs that Ganaway might have gone on such a mission prior to his inviting Mrs. Schnauder to become a passenger in the car, thus warranting the inference that the use at the time was permissive, or at least that there had been an initial permissive use which would subject the insurer to liability even though the use at the time was unauthorized or prohibited. The plaintiffs contend that Ganaway was driving toward the Hospital at the time of the accident and from this they say it may be inferred that he was then returning the Jeep and so was in the course of his employment. The difficulty with the plaintiffs’ postulates is that they are based upon conjecture rather than proof. Such meagre evidence as there is would seem to negative any inference that Gan-away had taken out the Jeep for any purpose on behalf of his employer. The permission to use an automobile in the business of the owner does not authorize an employee to take it for use on a mission of his own. Sun Underwriters Insurance Co. v. Standard Accident Insurance Co., La.App., 47 So.2d 133; Wilson v. Farnsworth, La.App., 4 So.2d 247. Cf. Farnet v. DeCuers, La.App., 195 So. 797. No different rule would apply even though it might be inferred that Gana-way was, when the accident happened, in the process of returning the car to his employer. Wilson v. Farnsworth, supra.
The plaintiffs point to evidence showing that about a month before the accident with which we are here concerned, Ganaway had taken the Jeep for the purpose of getting coffee. This, say the plaintiffs, justifies an inference that there was a customary use from which permission might be implied, as in the case of Fulco v. City Ice Service, Inc., La.App., 59 So.2d 198. But a custom does not arise from a single incident. The evidence also shows that Ganaway was reprimanded for taking the Jeep without permission and threatened with discharge if he was caught doing it again.
We reach the conclusion that the plaintiffs cannot recover on the insurance policy because of the absence of evidence that Ganaway was using the Jeep in the course of his employment by the Hospital, or that he had been given any permission, express or implied, to use it on any mission of his own. Having reached this conclusion it becomes unnecessary that we consider the appellant’s specifications of error relating to the refusal of the court to give requested charges and the refusal to direct a verdict because of the insufficiency of the evidence to show negligence on the part of Ganaway. Neither do we discuss the question as to whether there should have been a dismissal of the action as to Joan Schnauder on the ground that the jurisdictional amount was not shown. One of the remaining questions submitted might, we think, be commented on briefly. Three jurors were excused because of their acquaintance with counsel for the insurance company, and it is asserted that in so doing, the court erred. One was excused because he had known the attorney “many, many years.” Another had known him “for some time” “just as a friend.” The third knew him “personally” “quite a number of years” having “met him at different occasions,” and at “social functions.” We think the jurors were improperly excused. As this Court has said, “A juror is not per se disqualified because he is acquainted with or a friend of counsel in a case, whether advocating the cause of a private litigant or prosecuting in a criminal case.” Roberson v. United States, 5 Cir., 1957, 249 F.2d 737, 740, certiorari denied 356 U.S. 919, 78 S.Ct. 704, 2 L.Ed.2d 715.
In the absence of evidence from which it was shown or might be inferred that the Jeep was being driven by Ganaway with express or implied authorization or permission of the insured there is no legal support for the judgment against the insurance company. Therefore the judgment must be reversed and be here rendered for the appellant. Continental Casualty Co. v. Quebedeaux, supra.
Reversed and rendered.
. LSA-R.S. 22:655.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer:
|
songer_usc2
|
12
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 28. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
Vernice DUBOSE, Susan Daigle, individually and on behalf of all others similarly situated, Plaintiffs, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development; Windham Heights Associates, a limited partnership; Anthony Associates, a general partnership; and Simon Konover, individually and in his official capacity as a general partner in Windham Heights Associates and Anthony Associates, Defendants, Samuel R. Pierce, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant-Cross-Appellee. Claudia WALTER and Dominick Cortese, individually and on behalf of all other persons similarly situated, Plaintiffs, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development; Carabetta Enterprises, Inc., a corporation organized and existing under the laws of the State of Connecticut, located in the Town of Meriden, County of New Haven, State of Connecticut, Defendants, Samuel R. Pierce, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant-Cross-Appellee. Janette LITTLE, individually and on behalf of all others similarly situated, Plaintiff, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development; Richard Brown, individually and in his capacity as part-owner of East Hartford Estates; Oak Management Co., Inc., a Connecticut Corporation; Louis Brown, individually and in his capacity as part-owner of East Hartford Estates, Defendants, Samuel R. Pierce, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant-Cross-Appellee. May PLEASANT, individually and on behalf of others similarly situated, Plaintiff, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., Secretary of the U.S. Department of Housing and Urban Development; Tuscan Brotherhood Homes, Inc., A Connecticut corporation, Defendants, Samuel R. Pierce, Jr., Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant-Cross-Appellee. Pantaleon MORALES, Ylda Ladson and Margaret Williams, individually and on behalf of those similarly situated, Plaintiffs, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his capacity as Secretary of the U.S. Department of Housing and Urban Development; William H. Hernandez, Jr., individually and in his capacity as Manager for Connecticut for the U.S. Department of Housing and Urban Development; Canterbury Gardens Cooperative, Inc. and Ripps Realty, Inc., Defendants, Samuel R. Pierce, Jr., individually and in his capacity as Secretary of the U.S. Department of Housing and Urban Development; William H. Hernandez, Jr., individually and in his capacity as Manager for Connecticut for the U.S. Department of Housing and Urban Development, Defendants-Appellants-Cross-Appellees. Cathy ADAMS, Sheila Caqette, Barbara Littlejohn and Hazel French, individually and on behalf of all others similarly situated, Plaintiffs, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development; Branford Manor Associates, Bay Management Corporation, Marvin S. Gold, Annette E.P. Gold, Milton A. Bernblum, John J. Groves, and Burton Levy, individually and as general partners in Branford Manor Associates, Defendants, Samuel R. Pierce, Jr., individually and in his official capacity as Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant-Cross-Appellee. Merry Ellen GRUNDMAN, individually and on behalf of all others similarly situated, Plaintiff, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his capacity as Secretary of the U.S. Department of Housing and Urban Development; John Errichett, individually and in his capacity as owner of Highwood Apartments; Creative Management & Realty, a Connecticut Corporation, Defendants, Samuel R. Pierce, Jr., individually and in his capacity as Secretary of the U.S. Department of Housing and Urban Development, Defendant-Appellant-CrossAppellee. Joann JOHNSON and Frank Jackson, individually and on behalf of all others similarly situated, Plaintiffs, Connecticut Legal Services, Inc., San Fernando Valley Neighborhood Legal Services, Appellees-Cross-Appellants, v. Samuel R. PIERCE, Jr., individually and in his capacity as Secretary, U.S. Department of Housing and Urban Development; William H. Hernandez, Jr., individually and in his capacity as Manager for Connecticut for the U.S. Department of Housing and Urban Development and Ripps Realty, Inc., Defendants, Samuel R. Pierce, Jr., individually and in his capacity as Secretary, U.S. Department of Housing and Urban Development; William H. Hernandez, Jr., individually and in his capacity as Manager for Connecticut for the U.S. Department of Housing and Urban Development, Defendants-Appellants-Cross-Appellees.
Nos. 581, 582, 583, Dockets 84-6145, 84-6169, 84-6171, 85-6017.
United States Court of Appeals, Second Circuit.
Argued Jan. 23, 1985.
Decided May 14, 1985.
John S. Koppel, Dept, of Justice, Civ. Div., Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., Robert S. Greenspan, Dept, of Justice, Washington, D.C., Alan H. Nevas, U.S. Atty., D. Connecticut, New Haven, Conn., of counsel), for appellants-cross-appellees.
Dennis J. O’Brien, Connecticut Legal Services, Inc., Willimantic, Conn. (Douglas M. Crockett, Norman K. Janes, Connecticut Legal Services, Inc., Willimantic, Conn., of counsel), for appellees-cross-appellants Connecticut Legal Services, Inc.
William H. Clendenen, New Haven, Conn. (Fred Altshuler, Lew Hollman, San Fernando Valley Neighborhood Legal Services, Inc., Pacoima, Cal., of counsel), for appel-lees-cross-appellants San Fernando Valley Neighborhood Legal Services, Inc.
Before VAN GRAAFEILAND, MES-KILL and WINTER, Circuit Judges.
Judge Winter having recused himself after oral argument, this decision is rendered solely by Judges van Graafeiland and Meskill, who are in agreement, pursuant to § 0.14(b) of the Rules of the United States Court of Appeals for the Second Circuit.
MESKILL, Circuit Judge:
This action is before us on appeal from a judgment entered in the United States District Court for the District of Connecticut, Blumenfeld, J, granting plaintiffs’ motion for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982) (EAJA). The court held that the government’s position in litigation was not substantially justified so that a fee award to plaintiffs was proper. Because we disagree with the court’s conclusion, we reverse. We also dismiss plaintiffs’ cross-appeal concerning the amount and calculation of the award.
I
This case represents the final chapter in a lengthy series of actions concerning federal housing subsidies. Because the issue ■before us is a limited one — whether the district court’s award of fees was proper — a brief review of the facts will suffice. The complete factual and procedural history of the underlying actions has been exhaustively covered in a number of prior opinions. See Dubose v. Pierce, 579 F.Supp. 937, 941-46 (D.Conn.1984) (Dubose V); Dubose v. Harris, 82 F.R.D. 582, 583-85 (D.Conn.1979) (Dubose IV); Dubose v. Harris, 434 F.Supp. 227, 228-30 (D.Conn. 1977) (Dubose III)) Dubose v. Hills, 22 Fed.R.Serv.2d 476, 477 (D.Conn.1976) (Dubose II)) Dubose v. Hills, 405 F.Supp. 1277, 1280-82 (D.Conn.1975) (Dubose I), modified on other grounds, 420 F.Supp. 399 (D.Conn.1976).
Section 236 of the National Housing Act, 12 U.S.C. § 1715z-1 (1982), provides for financial assistance to owners of low income housing projects. In 1974 Congress modified this program through passage of the Housing and Community Development Act of 1974 (HCDA), Pub.L. No. 93-383, 88 Stat. 633. Among the changes instituted by HCDA was the addition of § 1715z-1(f)(3)(A) (1976), repealed by Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, § 322(f)(7), 95 Stat. 403. Section 1715z-l(f)(3)(A) amended HCDA’s operating subsidy program to allow the Secretary of Housing and Urban Development (HUD) to make “additional assistance payments to the project owner in an amount up to the amount by which the sum of the cost of utilities and local property taxes exceeds the initial operating expense level.” 12 U.S.C. § 1715z-1(f)(3)(A) (1976). These payments were intended to protect tenants in low income housing from rent boosts that would otherwise result from increases in property taxes and utility costs.
This subsidy program was not implemented. Instead, HUD allowed owners to pass cost increases along to tenants as higher rents. The Secretary believed that implementation of the program was discretionary and that the agency could choose to use its funds in other ways.
The underlying action followed. In 1975 Judge Blumenfeld granted the tenants’ motion for a preliminary injunction ordering the Secretary to implement the program. Dubose I, 405 F.Supp. at 1292-93. Rather than appealing that decision, HUD concentrated its opposition on projects other than those covered by the injunction. In May 1976, after additional suits were filed, the court certified a statewide class of project-plaintiffs and ordered HUD to pay subsidies to all projects in Connecticut. Dubose II, 22 Fed.R.Serv.2d at 477-79.
In June 1976, the United States District Court for the District of Columbia issued a permanent injunction ordering HUD to pay the subsidies for nationwide housing projects. Underwood v. Hills, 414 F.Supp. 526, 532 (D.D.C.1976). That injunction was stayed by the Supreme Court pending appeal. 429 U.S. 892, 97 S.Ct. 250, 50 L.Ed.2d 175 (1976) (action of whole Court). In 1977 the Supreme Court granted certiorari in two related cases, Harris v. Abrams and Harris v. Ross, 431 U.S. 928, 97 S.Ct. 2630, 53 L.Ed.2d 243 (1977). See Abrams v. Hills, 547 F.2d 1062 (9th Cir.1976), vacated sub nom. Pierce v. Abrams, 455 U.S. 1010, 102 S.Ct. 1700, 72 L.Ed.2d 127 (1982), and Ross v. Community Services, Inc., 405 F.Supp. 831 (D.Md.1975), aff'd, 544 F.2d 514 (4th Cir.1976), vacated sub nom. Pierce v. Ross, 455 U.S. 1010, 102 S.Ct. 1700, 72 L.Ed.2d 127 (1982).
Before those cases could be heard, the parties in the related actions agreed to a settlement. Under this agreement, HUD was to pay into the Underwood Court a settlement fund from which eligible tenants were to receive retroactive tax and utility cost subsidy payments. See Stipulation for Settlement, reprinted as Appendix to Dubose IV, 82 F.R.D. at 592-605 (Stipulation). The Stipulation also required that the underlying cases were to remain active until settlement administration was completed. Stipulation, 82 F.R.D. at 598 ¶ 17. This settlement was approved by the Connecticut district court. Dubose IV, 82 F.R.D. at 588-92.
During the settlement administration process, the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982) (EAJA), was passed. The relevant provision of EAJA states:
[ejxcept as otherwise specifically provided by statute, a court shall award to a prevailing party ... fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States ..., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A) (emphasis added).
The plaintiffs in both the Connecticut action and in certain California actions moved for fees pursuant to section 2412(d)(1)(A). Both courts ruled in favor of the plaintiffs, holding that the government had failed to establish either of the statutory defenses to the awarding of fees. Du-bose V, 579 F.Supp. at 948-52; Underwood v. Pierce, 547 F.Supp. 256, 261-64 (C.D.Cal. 1982), appeal pending No. 83-5773 (9th Cir.).
In the instant case, Judge Blumenfeld held that HUD’s position was not “substantially justified” under EAJA. The court noted that the fact that the government was not ultimately successful would not lead ineluctably to the conclusion that HUD’s position was unjustified. Instead, the court evaluated the “reasonableness” of the agency’s litigation position. The court held that “HUD’s position was not merely unreasonable but had no justifiable basis,” Dubose V, 579 F.Supp. at 950, and that the government’s assertion that “special circumstances” made an award unjust, 28 U.S.C. § 2412(d)(1)(A), was similarly unavailing. HUD insisted that because the settlement agreement barred payment of attorneys’ fees from the fund, which was the only possible source of fees at the time, any award of fees was thereby barred. The court rejected this argument, holding that an award of fees was proper under EAJA despite the terms of the settlement agreement.
II
Because we believe that the government’s position was substantially justified, we reverse the judgment of the district court. We therefore need not consider the effect of the settlement agreement provision that barred the use of the fund for attorneys’ fees.
The district court’s determination that HUD’s position was not plausible should be viewed as a conclusion of law, Spencer v. NLRB, 712 F.2d 539, 563 (D.C. Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984), and subject to de novo review. Boudin v. Thomas, 732 F.2d 1107, 1117 (2d Cir.1984).
The definition of “position” under EAJA is settled in this Circuit. In Boudin we determined that the term refers to the government’s position in litigation rather than its actions during the underlying administrative proceedings. Boudin, 732 F.2d at 1115-16. Therefore, we may consider only HUD’s litigating posture in our examination of justification.
The government bears the burden of proving that its action as a litigant was substantially justified. Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1087 (2d Cir.1983); Spencer, 712 F.2d at 557; Ellis v. United States, 711 F.2d 1571, 1575 (Fed.Cir.1983); Dougherty v. Lehman, 711 F.2d 555, 561-62 (3d Cir.1983); H.R.Rep. No. 1418, 96th Cong., 2nd Sess. 10, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984, 4989. “The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and fact, no award will be made.” H.R.Rep. No. 1418 at 10, 1980 U.S.Code Cong. & Ad.News at 4989. See also Environmental Defense Fund, 722 F.2d at 1085; Tyler Business Services, Inc. v. NLRB, 695 F.2d 73, 76 (4th Cir.1982) (absence of rational explanation for gap in proof results in finding of absence of justification).
Plaintiffs prevailed in the underlying action in the district court because the court rejected Secretary Hills’ claim that her refusal to implement the operating subsidy program was a valid exercise of discretion. Dubose I, 405 F.Supp. at 1288-92. HUD’s litigation position was premised on its belief that, under the National Housing Act, the agency had discretion to choose the ways in which it would implement national housing policy. In support of its position, HUD relied on Pennsylvania v. Lynn, 501 F.2d 848 (D.C.Cir.1974). In Lynn the D.C.Circuit held that Secretary Romney had discretion to terminate a number of housing programs and that he had not abused his discretion in so doing, because he believed that the legislative purposes were not served by these programs.
Secretary Hills, defendant’s predecessor, argued before the district court that she had discretion as to the implementation of the operating subsidy program based on the language and legislative history of the Act and on Congress’ subsequent funding decisions. She also argued that her lawful discretion over the allocation of her contract authority permitted her to refuse to fund the operating subsidies. We are concerned not only with the substantive accuracy of this position as viewed by hindsight, but also with the agency’s legal justification for its actions throughout the litigation.
We are convinced that HUD has borne its burden of proving that its litigation position, albeit ultimately unsuccessful, was not unreasonable. Our analysis of this “borderline” case is aided by our examination of the factors developed by the Spencer Court. United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1486 n. 11 (10th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 105, 83 L.Ed.2d 49 (1984); Foley Construction Co. v. United States Army Corps of Engineers, 716 F.2d 1202, 1204 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984). These factors are: the clarity of the governing law, the foreseeable length and complexity of the litigation and the consistency of the government’s position. Spencer, 712 F.2d at 559-61.
1. Clarity of the Governing Law
The government’s position must be evaluated according to the legal justification for its posture throughout the litigation rather than by hindsight after later judicial interpretations of the issues involved. See Devine v. Sutermeister, 733 F.2d 892, 895 (Fed.Cir.1984). At the time the underlying action was filed, the D.C. Circuit’s conclusion in Lynn, the only judicial guidance available, offered no hint of the ultimate outcome of the subsequent cases. In preparing its litigation stance the government relied on arguments similar to those which had succeeded in Lynn. The district court admitted that it initially found Lynn to be relevant. Dubose V, 579 F.Supp. at 950-51.
The district court’s reevaluation of its earlier view of the justification for the government’s position ignores the requirement that we consider HUD’s perspective as the agency developed its trial and appeal strategy. The factors that the court later found persuasive in distinguishing Lynn were not so obvious at that stage. The governing law, to the extent that it existed, did not mandate HUD’s surrender early in the litigation. Although HUD’s position became more questionable as adverse trial and appeal decisions accumulated, we cannot say that the tally ever became so one-sided as to render HUD’s position clearly unjustifiable.
Thus, the first of the Spencer factors, the clarity of the governing law, tilts in favor of HUD. See Cornelia v. Schweiker, 741 F.2d 170, 172 (8th Cir.1984) (where all legal issues were questions of first impression in circuit, agency’s action in seeking clarification from courts was reasonable); Boudin, 732 F.2d at 1116 (law on issue in question was not clear at time of suit; government’s position was reasonable). Cf. Hoang Ha v. Schweiker, 707 F.2d 1104, 1106 (9th Cir.1983) (case previously decided, adverse to government’s position, is factor in assessing reasonableness, but cases from other circuits are not conclusive); Wyandotte Savings Bank v. NLRB, 682 F.2d 119, 120 (6th Cir.1982) (fact that government’s position was contrary to prior Sixth Circuit precedent did not mean that it was not substantially justified; fees denied).
2. Foreseeable Length and Complexity of Litigation
The Spencer Court stated:
Sensitivity to the central objective of the Act — reduction of the deterrents to challenges of unreasonable government conduct — thus suggests that, in categories of cases in which substantial investments of effort and money commonly are required to prosecute suits to their ultimate conclusions, the government should be obliged to make an especially strong showing that its persistence in litigation was justified.
712 F.2d at 560.
This factor adds little to our analysis. While this litigation has certainly been long and complex, spanning some ten years and several circuits, we find no indication that the government’s behavior deterred aggrieved tenants from filing suits. Indeed, the government paid the subsidies that were ordered in the December 1975 and May 1976 injunctions until operation of the May 1976 injunction was stayed by this Court. See Dubose III, 434 F.Supp. at 230; see also 429 U.S. 1085, 97 S.Ct. 1092, 51 L.Ed.2d 531 (1977) (action by whole court refusing to vacate stay issued by Second Circuit).
Moreover, simple reliance on the length of the litigation in this case is deceptive. The settlement negotiations and fee motions have been proceeding since 1977. Neither of these developments was foreseeable at the outset of the litigation. We find no reason to include this case in the category described by the Spencer Court. Hence we decline to impose on HUD the burden of making an “especially strong showing” of justification merely because the litigation has been long-lived. We conclude that, at most, this factor provides little benefit to either party.
We note also that the foreseeable complexity of the litigation is closely tied to the first factor, the clarity of the governing law. Where, as here, the government’s position appeared at first to be supported by persuasive case law, the government should not be penalized for defending a suit which becomes long, complex and eventually unsuccessful.
3. Consistency of the Government’s Position
The Spencer Court suggested that where the government acts to single out one private party as the victim of an inconsistent interpretation, the government’s unpredictability should be penalized. Spencer, 712 F.2d at 560-61. Here, by contrast, the plaintiffs cannot argue that they were “subjected to atypically harsh treatment.” Id. at 561. It has been clear throughout the history of this litigation that the Secretary had no intention of paying any operating subsidies unless those payments were made in response to court orders. This factor, then, clearly supports a denial of legal fees.
In sum, the Spencer factors alone demonstrate that HUD’s litigation position was substantially justified. But we need not rely exclusively on those factors. Additional considerations lead to the same result.
The district court also refused to credit either the stays issued by this Court and the Supreme Court, or the Supreme Court’s grant of certiorari in two related cases, suggesting that those events were “too opaque” to lend credence to a conclusion that HUD’s position was justified. As to the former, the court found no indication that the Supreme Court’s grant of a stay indicated any view as to the merits; our subsequent issuance of .a stay was dismissed with the suggestion that we “had little choice but to grant one.” Dubose V, 579 F.Supp. at 950. And as to the latter, the court suggested that the Supreme Court might have granted certiorari in those two cases, both of which had ruled against the government, in order to affirm the lower court’s rejection of HUD’s position. Id. We reject this reasoning.
“A court in staying the action of a lower court ... must take into account factors such as irreparable harm and probability of success on the merits.” Coleman v. Paccar, Inc., 424 U.S. 1301, 1305, 96 S.Ct. 845, 847, 47 L.Ed.2d 67 (Rehnquist, Circuit Justice, 1976) (granting motion to vacate stay; citing O’Brien v. Brown, 409 U.S. 1, 3, 92 S.Ct. 2718, 2719, 34 L.Ed.2d 1 (1972) (per curiam)). In this Circuit, in addition to considering the harm to the parties and the public interest, a court must find that the movant has demonstrated “a substantial possibility, although less than a likelihood, of success.” Hayes v. City University of New York, 503 F.Supp. 946, 963 (S.D.N.Y.), aff'd on other grounds sub nom. Hayes v. Human Resources Administration, 648 F.2d 110 (2d Cir.1981). See also In re Turner, 309 F.2d 69, 72 (2d Cir.1962). We find it unlikely that these criteria were overlooked by this Court simply because the Supreme Court had already acted. We see both stays as indicative of the courts’ view that the government’s position was not unreasonable.
The same is true of the Supreme Court’s grant of certiorari. Although the outcome of the Court’s examination of this situation was left forever in limbo by the settlement, we do not believe that the district court’s interpretation is the only plausible one. We believe that it is equally probable that the Court granted certiorari not to affirm but to reverse the lower court decisions. The district court cited its previous opinion as support for its conclusion that HUD’s conduct was “unreasonable [and] had no justifiable basis.” Dubose V, 579 F.Supp. at 950. However, the court’s prior opinion has little bearing on the instant determination because the first conclusion was not “made with an intent to resolve EAJA questions.” Cinciarelli v. Reagan, 729 F.2d 801, 806 (D.C.Cir.1984).
Similarly, the district court's suggestion that the numerous adverse rulings in the lower courts should lead to a different result does not convince us to overlook the many factors supporting our conclusion, particularly in light of the stays and grant of certiorari discussed above. Nor does the court’s suggestion that the government’s participation in the settlement represented an admission that the litigation was unjustified merit much analysis. Speculation as to the agency’s intent in settling adds little to our analysis. A holding that an agency’s decision to settle an appeal on terms favorable to the claimant undercuts the agency’s justification of its litigation position would discourage future settlements, a factor we should not lightly disregard. A litigation position that was justified, for EAJA purposes, before a settlement should not later lose its justification as a result of the settlement. After all, policy reasons quite apart from the merits of the dispute may, in the last analysis, dictate a premature termination of the litigation.
Ill
For the reasons stated above, we vacate the judgment of the district court and hold that the government has carried its burden of proving that its litigation position was substantially justified. In view of this determination, we need not reach the issue of whether the settlement agreement provision barring an award of fees from the fund affects a fee award under EAJA. We also need not reach the plaintiffs’ cross-appeal concerning the amount and calculation of fees. The cross-appeal is dismissed. We remand to the district court for entry of an order dismissing the complaint. No costs on appeal.
. In addition to the actions in the District of Connecticut, related suits were filed in other parts of the country, including the District of Columbia, Maryland and California. See Abrams v. Hills, 547 F.2d 1062 (9th Cir.1976), vacated sub nom. Pierce v. Abrams, 455 U.S. 1010, 102 S.Ct. 1700, 72 L.Ed.2d 127 (1982); Underwood v. Hills, 414 F.Supp. 526 (D.D.C. 1976); Ross v. Community Services, Inc., 405 F.Supp. 831 (D.Md.1975), aff'd, 544 F.2d 514 (4th Cir.1976), vacated sub nom. Pierce v. Ross, 455 U.S. 1010, 102 S.Ct. 1700, 72 L.Ed.2d 127 (1982). For other related cases, see Dubose v. Harris, 82 F.R.D. 582, 585 n. 12 (D.Conn. 1979).
. Our stay was issued after that ordered by the Supreme Court, 429 U.S. 892, 97 S.Ct. 250, 50 L.Ed.2d 175 (1976) (action by whole Court), in Underwood v. Hills, 414 F.Supp. 526 (D.D.C. 1976).
. The government argued before the district court that the actions were not "pending” on the effective date of the EAJA and that EAJA did not permit an award of fees for work performed prior to that date. These arguments have been abandoned on appeal.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 28. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_judgdisc
|
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 abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
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: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_respondent
|
103
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
SYNGENTA CROP PROTECTION, INC., et al. v. HENSON
No. 01-757.
Argued October 15, 2002
Decided November 5, 2002
Rehnquist, C. J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, post, p. 35.
Henry B. Alsobrook, Jr., argued the cause for petitioners. With him on the briefs were Mark C. Surprenant, Robert N. Markle, and Alan B. Nadel.
David J. Bederman argued the cause and filed a brief for respondent.
Robert N. Weiner and Jonathan Harrison filed a brief for the Product Liability Advisory Council, Inc., as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Texas by John Cornyn, Attorney General of Texas, Lonny S. Hoffman, and Gregory S. Coleman; for the Association of Trial Lawyers of America by Jeffrey Robert White; and for Trial Lawyers for Public Justice by Adam Samaha, Roberta B. Walbum, Martha K Wivell, and Arthur H. Bryant.
Chief Justice Rehnquist
delivered the opinion of the Court.
Respondent Hurley Henson filed suit in state court in Iberville Parish, Louisiana, against petitioner Syngenta Crop Protection, Inc. (then known as Ciba-Geigy Corp.) asserting various tort claims related to petitioners’ manufacture and sale of a chlordimeform-based insecticide. A similar action, Price v. Ciba-Geigy Corp., was already underway in the United States District Court for the Southern District of Alabama. The Louisiana court stayed respondent’s action when respondent successfully intervened in the Price suit and participated in the ensuing settlement. That settlement included a stipulation that the Henson action, “including any and all claims . . . against [petitioners], shall be dismissed, with prejudice,” as of the approval date. App. 38a; see also id., at 36a.
Following the approval of the settlement, the Louisiana state court conducted a hearing to determine whether the Henson action should be dismissed. Counsel for respondent told the court that the Price settlement required dismissal of only some of the claims raised in Henson. Although this representation appeared to be contrary to the terms of the settlement agreement, the Louisiana court relied upon it and invited respondent to amend the complaint and proceed with the action.
Counsel for petitioners did not attend the hearing. Upon learning of the state court’s action, however, petitioners promptly removed the action to the Middle District of Louisiana, relying on 28 U. S. C. § 1441(a). The notice of removal asserted federal jurisdiction under the All Writs Act, § 1651, and under the supplemental jurisdiction statute, §1367. The Middle District of Louisiana granted a transfer to the Southern District of Alabama pursuant to § 1404(a), and the Alabama court then dismissed Henson as barred by the Price settlement and sanctioned respondent’s counsel for his misrepresentation to the Louisiana state court.
The Court of Appeals for the Eleventh Circuit affirmed the sanctions but vacated the District Court’s order dismissing the Henson action. Henson v. Ciba-Geigy Corp., 261 F. 3d 1065 (2001). The court reasoned that §1441 by its terms authorizes removal only of actions over which the district courts have original jurisdiction. But the All Writs Act authorizes writs “in aid of [the courts’] respective jurisdictions” without providing any federal subject-matter jurisdiction in its own right, see, e. g., Clinton v. Goldsmith, 526 U. S. 529, 534-535 (1999). Therefore, the Court of Appeals concluded, the All Writs Act could not support removal of the Henson action from state to federal court.
In so holding, the Court of Appeals recognized that several Circuits have held that the All Writs Act gives a federal court the authority to remove a state-court case in order to prevent the frustration of orders the federal court has previously issued. See, e. g., Xiong v. Minnesota, 195 F. 3d 424, 426 (CA8 1999); Bylinski v. Allen Park, 169 F. 3d 1001, 1003 (CA6 1999); In re Agent Orange Product Liability Litigation, 996 F. 2d 1425, 1431 (CA2 1993). It noted, however, that other Circuits have agreed with its conclusion that the All Writs Act does not furnish removal jurisdiction. See, e. g., Hillman v. Webley, 115 F. 3d 1461, 1469 (CA10 1997). We granted certiorari to resolve this controversy, 534 U. S. 1126 (2001), and now affirm.
The All Writs Act, 28 U. S. C. § 1651(a), provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Petitioners advance two arguments in support of their claim that removal of the Henson action was proper under the All Writs Act: (1) The All Writs Act authorized removal of the Henson action, and (2) the All Writs Act in conjunction with the doctrine of ancillary enforcement jurisdiction authorized the removal. We address these contentions in turn.
First, petitioners, like the courts that have endorsed “All Writs removal,” rely upon our statement in United States v. New York Telephone Co., 434 U. S. 159, 172 (1977), that the Act authorizes a federal court “to issue such commands . . . as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” Petitioners also cite Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U. S. 34, 41 (1985), for the proposition that the All Writs Act “fill[s] the interstices of federal judicial power when those gaps threate[n] to thwart the otherwise proper exercise of federal courts’ jurisdiction.” They argue that the Act comes into play here because maintenance of the Henson action in state court in Louisiana frustrated the express terms of the Price settlement, which required that “any and all claims” in Henson be dismissed.
But Pennsylvania Bureau made clear that “[w]here a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” 474 U. S., at 43. The right of removal is entirely a creature of statute and “a suit commenced in a state court must remain there until cause is shown for its transfer under some act of Congress.” Great Northern R. Co. v. Alexander, 246 U. S. 276, 280 (1918) (citing Gold-Washing and Water Co. v. Keyes, 96 U. S. 199, 201 (1878)). These statutory procedures for removal are to be strictly construed. See, e. g., Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100, 108-109 (1941) (noting that policy underlying removal statutes “is one calling for the strict construction of such legislation”); Healy v. Ratta, 292 U. S. 263, 270 (1934) (“Due regard for the rightful independence of state governments ... requires that [federal courts] scrupulously confine their own jurisdiction to the precise limits which the statute has defined”); Matthews v. Rodgers, 284 U. S. 521, 525 (1932); Kline v. Burke Constr. Co., 260 U. S. 226, 233-234 (1922). Petitioners may not, by resorting to the All Writs Act, avoid complying with the statutory requirements for removal. See Pennsylvania Bureau, supra, at 43 (All Writs Act “does not authorize [federal courts] to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate”).
Petitioners’ question presented to this Court suggests a variation on this first argument, asking whether the All Writs Act “vests federal district courts with authority to exercise removal jurisdiction under 28 U S. C. §1441” Pet. for Cert. i (emphasis added). The general removal statute, 28 U. S. C. § 1441, provides that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending,” unless,Congress specifically provides otherwise. § 1441(a). Under the plain terms of § 1441(a), in order properly to remove the Henson action pursuant to that provision, petitioners must demonstrate that original subject-matter jurisdiction lies in the federal courts. They concede that the All Writs Act “does not, by its specific terms, provide federal courts with an independent grant of jurisdiction.” Brief for Petitioners 9; see also Clinton, supra, at 534-535 (express terms of the All Writs Act confine a court “to issuing process ‘in aid of’ its existing statutory jurisdiction; the Act does not enlarge that jurisdiction”). Because the All Writs Act does not confer jurisdiction on the federal courts, it cannot confer the original jurisdiction required to support removal pursuant to § 1441.
Second, petitioners contend that some combination of the All Writs Act and the doctrine of ancillary enforcement jurisdiction support the removal of the Henson action. As we explained in Peacock v. Thomas, 516 U. S. 349, 355 (1996), “[ancillary jurisdiction may extend to claims having a factual and logical dependence on ‘the primary lawsuit.’ ” Petitioners emphasize that the Southern District of Alabama retained jurisdiction over the Price settlement, thus distinguishing Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375 (1994), in which we found ancillary jurisdiction lacking. They argue that respondent’s maintenance of the Henson action undermined the Price settlement and that, in light of the Alabama court’s retained jurisdiction, ancillary enforcement jurisdiction was necessary and appropriate. But they fail to explain how the Alabama District Court’s retention of jurisdiction over the Price settlement authorized removal of the Henson action. Removal is governed by statute, and invocation of ancillary jurisdiction, like invocation of the All Writs Act, does not dispense with the need for compliance with statutory requirements.
Read in light of the question presented in the petition for certiorari, perhaps petitioners’ argument is that ancillary jurisdiction authorizes removal under 28 U. S. C. § 1441. As we explained in Peacock, however, a “court must have jurisdiction over a case or controversy before it may assert jurisdiction over ancillary claims.” 516 U. S., at 355. Ancillary jurisdiction, therefore, cannot provide the original jurisdiction that petitioners must show in order to qualify for removal under § 1441.
Section 1441 requires that a federal court have original jurisdiction over an action in order for it to be removed from a state court. The All Writs Act, alone or in combination with the existence of ancillary jurisdiction in a federal court, is not a substitute for that requirement. Accordingly, the judgment of the Court of Appeals is
Affirmed.
Petitioners’ assertion that removal was “necessary” is unpersuasive on its own bottom. One in petitioners’ position may apply to the court that approved a settlement for an injunction requiring dismissal of a rival action. Petitioners could also have sought a determination from the Louisiana state court that respondent’s action was barred by the judgment of the Alabama District Court.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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sc_respondent
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028
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
SMITH v. TEXAS
No. 04-5323.
Decided November 15, 2004
Per Curiam.
Petitioner LaRoyce Lathair Smith was convicted of capital murder and sentenced to death by a jury in Dallas County, Texas. Before the jury reached its sentence, the trial judge issued a supplemental “nullification instruction.” Ex parte Smith, 132 S. W. 3d 407, 409 (Tex. Crim. App. 2004). That instruction directed the jury to give effect to mitigation evidence, but allowed the jury to do so only by negating what would otherwise be affirmative responses to two special issues relating to deliberateness and future dangerousness. In Penry v. Johnson, 532 U. S. 782 (2001) (Penry II), we held a similar “nullification instruction” constitutionally inadequate because it did not allow the jury to give “ ‘full consideration and full effect to mitigating circumstances’” in choosing the defendant’s appropriate sentence. Id., at 797 (quoting Johnson v. Texas, 509 U. S. 350, 381 (1993) (O’Connor, J., dissenting)). Despite our holding in Penry II, the Texas Court of Criminal Appeals rejected petitioner’s request for postconviction relief. The court reasoned that the instruction either was irrelevant because petitioner did not proffer “constitutionally significant” mitigation evidence, or was sufficiently distinguishable from the instruction in Penry II to survive constitutional scrutiny. 132 S. W. 3d, at 413, n. 21. We grant the petition for certiorari and petitioner’s motion for leave to proceed in forma pauperis, and reverse.
I
In 1991, petitioner was convicted of brutally murdering one of his former co-workers at a Taco Bell in Dallas County. The victim and one of her co-workers were closing down the restaurant when petitioner and several friends asked to be let in to use the telephone. The two employees recognized petitioner and let him in. Petitioner then told his former co-workers to leave because he wanted to rob the restaurant. When they did not leave, petitioner killed one co-worker by pistol-whipping her and shooting her in the back. Petitioner also threatened, but did not harm, his other former coworker before exiting with his friends. The jury found petitioner guilty of capital murder beyond a reasonable doubt.
At the punishment phase, the jury was instructed on two special issues: first, whether the killing was deliberate; and second, whether the defendant posed a continuing danger to others. Approximately two years prior to the trial, we had held that presenting only these two special issues, without additional instructions regarding the jury’s duty to consider mitigation evidence, violated the Eighth Amendment. Penry v. Lynaugh, 492 U. S. 302, 328 (1989) (Penry I). Shortly after petitioner’s trial, the Texas Legislature amended its capital sentencing scheme to require juries to take “into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant” in deciding whether there are sufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence. Penry II, supra, at 803 (quoting Tex. Code Crim. Proc. Ann., Art. 37.071(2)(e)(1) (Vernon Supp. 2001)). Petitioner, however, did not receive the benefit of the new statutory instruction at his trial. Instead, just as in Penry II, petitioner was sentenced pursuant to a supplemental instruction provided to the jury by the trial judge. That instruction read:
“ ‘You are instructed that you shall consider any evidence which, in your opinion, is mitigating. Mitigating evidence is evidence that reduces the Defendant’s personal or moral culpability or blameworthiness, and may include, but is not limited to, any aspect of the Defendant’s character, record, background, or circumstances of the offense for which you have found him guilty. Our law does not specify what may or may not be considered as mitigating evidence. Neither does our law provide a formula for determining how much weight, if any, a mitigating circumstance deserves. You may hear evidence which, in your judgment, has no relationship to any of the Special Issues, but if you find such evidence is mitigating under these instructions, you shall consider it in the following instructions of the Court. You, and each of you, are the sole judges of what evidence, if any, is mitigating and how much weight, if any, the mitigating circumstances, if any, including those which have no relationship to any of the Special Issues, deserves.
“‘In answering the Special Issues submitted to you herein, if you believe that the State has proved beyond a reasonable doubt that the answers to the Special Issues are “Yes,” and you also believe from the mitigating evidence, if any, that the Defendant should not be sentenced to death, then you shall answer at least one of the Special Issues “No” in order to give effect to your belief that the death penalty should not be imposed due to the mitigating evidence presented to you. In this regard, you are further instructed that the State of Texas must prove beyond a reasonable doubt that the death sentence should be imposed despite the mitigating evidence, if any, admitted before you.
“‘You are instructed that you may deliberate as a body about mitigating circumstances, but you are not required to reach a unanimous verdict as to their existence or weight. When you vote about the Special Issues, each of you must decide for yourself whether mitigating circumstances exist and, if so, how much weight they deserve.’” 132 S. W. 3d, at 409.
Employing the framework of special issues modified by the supplemental nullification instruction, the jury considered a variety of mitigation evidence. Petitioner presented evidence that (1) he had been diagnosed with potentially organic learning disabilities and speech handicaps at an early age; (2) he had a verbal IQ score of 75 and a full IQ of 78 and, as a result, had been in special education classes throughout most of his time in school; (3) despite his low IQ and learning disabilities, his behavior at school was often exemplary; (4) his father was a drug addict who was involved with gang violence and other criminal activities, and regularly stole money from family members to support a drug addiction; and (5) he was only 19 when he committed the crime.
In response, the prosecution submitted evidence demonstrating that petitioner acted deliberately and cruelly. The prosecution emphasized that petitioner knew his victim, yet stabbed her repeatedly in numerous places on her body. With respect to petitioner’s future dangerousness, the prosecution stressed that petitioner had previously been convicted of misdemeanor assault and proffered evidence suggesting that he had violated several drug laws.
During closing arguments at the punishment phase, the prosecution reminded the jury of its duty to answer truthfully the two special issues of deliberateness and future dangerousness.
“Now, when we talked to you on voir dire, we talked to you about — and we spent a lot of time talking to you to determine whether or not you could follow the law. You told us two very important things when we talked to you. First of all, you told us that in the appropriate ease that you could give the death penalty. Secondly, you said, ‘Mr. Nancarrow, Ms. McDaniel, if you prove to me that the answers to those special issues should be yes, then I can answer them yes.’ If you wavered, if you hesitated one minute on that, then I guarantee you, you weren’t going to be on this jury. We believed you then, and we believe you now.” Pet. for Cert. 6.
The jury verdict form tracked the final reminders the prosecution gave the jury. The form made no mention of nullification. Nor did it say anything about mitigation evidence. Instead, the verdict form asked whether petitioner committed the act deliberately and whether there was a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. The jury was allowed to give “Yes” or “No” answers only. The jury answered both questions “Yes” and sentenced petitioner to death. App. 4 to Pet. for Cert.
On direct appeal, petitioner argued that our holding in Penry I rendered his jury instructions unconstitutional because the special issues did not allow the jury to give effect to his mitigation evidence. The Texas Court of Criminal Appeals affirmed petitioner’s sentence, reasoning that the nullification instruction provided an adequate vehicle through which the jury could consider petitioner’s evidence. We denied certiorari on May 15, 1995. Smith v. Texas, 514 U.S. 1112.
Petitioner filed an original writ of habeas corpus in the trial court in 1998. That suit was dismissed as untimely, but the Texas Legislature amended its criminal code in such a way as to allow petitioner to file a timely writ. Petitioner did so, claiming that his jury was instructed in violation of the Eighth Amendment. Before the Texas Court of Criminal Appeals, petitioner argued that the jury instructions in his case ran afoul of our holding in Penry II. The court denied petitioner’s application on the merits. 132 S. W. 3d 407 (2004).
II
The Texas Court of Criminal Appeals issued its opinion just prior to our decision in Tennard v. Dretke, 542 U. S. 274 (2004). In Tennard, we reversed the Fifth Circuit’s refusal to grant a certificate of appealability to a defendant who was sentenced under the Texas capital sentencing scheme prior to the legislative revisions which took place in the aftermath of Penry I. Tennard, relying upon Penry I, argued that Texas’ two special issues — deliberateness and future dangerousness — did not allow the jury to give effect to his mitigation evidence and that the trial court’s failure to issue a supplemental mitigation instruction that would allow the jury to give full effect to his evidence rendered his death sentence unconstitutional. ' The state court and the Fifth Circuit both held that the lack of an adequate mitigation instruction was irrelevant. The courts both determined that Tennard had failed to satisfy the Fifth Circuit’s threshold standard for “ ‘constitutionally relevant’ mitigating evidence, that is, evidence of a ‘uniquely severe permanent handicap with which the defendant was burdened through no fault of his own,’ and evidence that ‘the criminal act was attributable to this severe permanent condition.’ ” 542 U. S., at 281 (some internal quotation marks omitted).
Our rejection of that threshold test was central to our decision to reverse in Tennard. We held that “[t]he Fifth Circuit’s test has no foundation in the decisions of this Court. Neither Penry I nor its progeny screened mitigating evidence for ‘constitutional relevance’ before considering whether the jury instructions comported with the Eighth Amendment.” Id., at 284. Rather, we held that the jury must be given an effective vehicle with which to weigh mitigating evidence so long as the defendant has met a “low threshold for relevance,” which is satisfied by ““‘evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.”’” Id., at 284-285 (quoting McKoy v. North Carolina, 494 U. S. 433, 440 (1990)).
The Texas Court of Criminal Appeals relied on precisely the same “screening test” we held constitutionally inadequate in Tennard. 132 S. W. 3d, at 413 (holding that mitigation evidence requires a special instruction only when that evidence passes the threshold test of “whether the defendant’s criminal act was ‘due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own’ ” (quoting Robertson v. Cockrell, 325 F. 3d 243, 251 (CA5 2003) (en banc))). Employing this test, the court concluded that petitioner’s low IQ and placement in special-education classes were irrelevant because they did not demonstrate that he suffered from a “severe disability.” 132 S. W. 3d, at 414. But, as we explained in Tennard, “[evidence of significantly impaired intellectual functioning is obviously evidence that ‘might serve as a basis for a sentence less than death.’” 542 U. S., at 288 (quoting Skipper v. South Carolina, 476 U. S. 1, 5 (1986); some internal quotation marks omitted). There is no question that a jury might well have considered petitioner’s IQ scores and history of participation in special-education classes as a reason to impose a sentence more lenient than death. Indeed, we have held that a defendant’s IQ score of 79, a score slightly higher than petitioner’s, constitutes relevant mitigation evidence. See Wiggins v. Smith, 539 U. S. 510, 535 (2003); cf. Tennard, supra, at 288.
The state court also held that petitioner had offered “no evidence of any link or nexus between his troubled childhood or his limited mental abilities and this capital murder.” 132 S. W. 3d, at 414. We rejected the Fifth Circuit’s “nexus” requirement in Tennard, supra, at 287 (noting that none of our prior opinions “suggested that a mentally retarded individual must establish a nexus between her mental capacity and her crime before the Eighth Amendment prohibition on executing her is triggered” and holding that the jury must be allowed the opportunity to consider Penry evidence even if the defendant cannot establish “a nexus to the crime”).
That petitioner’s evidence was relevant for mitigation purposes is plain under our precedents, even those predating Tennard. See, e. g., Penry I, 492 U. S., at 319-322; Payne v. Tennessee, 501 U. S. 808, 822 (1991); Boyde v. California, 494 U. S. 370, 377-378 (1990); Eddings v. Oklahoma, 455 U. S. 104, 114 (1982). The state court, however, erroneously relied on a test we never countenanced and now have unequivocally rejected. We therefore hold that the state court “assessed [petitioner’s legal] claim under an improper legal standard.” Tennard, supra, at 287. Because petitioner’s proffered evidence was relevant, the Eighth Amendment required the trial court to empower the jury with a vehicle capable of giving effect to that evidence. Whether the “nullification instruction” satisfied that charge is the question to which we now turn.
Ill
The Texas Court of Criminal Appeals held that even if petitioner did proffer relevant mitigation evidence, the supplemental “nullification instruction” provided to the jury adequately allowed the jury to give effect to that evidence. The court found it significant that the supplemental instruction in this case “told the jury that it ‘shall’ consider all mitigating evidence, even evidence unrelated to the special issues, [and] it also told the jury how to answer the special issues to give effect to that mitigation evidence.” 132 S. W. 3d, at 416. The court also concluded that the nullification instruction made it clear to the jury that a “No” answer was required if it “believed that the death penalty was not warranted because of the mitigating circumstances.” Ibid.
In Penry II, we held that “the key under Penry I is that the jury be able to ‘consider and give effect to [a defendant’s mitigation] evidence in imposing sentence.’ ” 532 U. S., at 797 (quoting Penry I, supra, at 319); see 532 U. S., at 797 (“ ‘[A] sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances’ ” (quoting Johnson v. Texas, 509 U. S., at 381 (O’Connor, J., dissenting); emphasis in Johnson)). We explained at length why the supplemental instruction employed by the Texas courts did not provide the jury with an adequate vehicle for expressing a “reasoned moral response” to all of the evidence relevant to the defendant’s culpability. 532 U. S., at 796. Although there are some distinctions between the Penry II supplemental instruction and the instruction petitioner’s jury received, those distinctions are constitutionally insignificant.
Penry II identified a broad and intractable problem — a problem that the state court ignored here — inherent in any requirement that the jury nullify special issues contained within a verdict form.
“We generally presume that jurors follow their instructions. Here, however, it would have been both logically and ethically impossible for a juror to follow both sets of instructions. Because Penry’s mitigating evidence did not fit within the scope of the special issues, answering those issues in the manner prescribed on the verdict form necessarily meant ignoring the command of the supplemental instruction. And answering the special issues in the mode prescribed by the supplemental instruction necessarily meant ignoring the verdict form instructions. Indeed, jurors who wanted to answer one of the special issues falsely to give effect to the mitigating evidence would have had to violate their oath to render a ‘“true verdict.’”
“The mechanism created by the supplemental instruction thus inserted ‘an element of capriciousness’ into the sentencing decision, ‘making the jurors’ power to avoid the death penalty dependent on their willingness’ to elevate the supplemental instruction over the verdict form instructions. There is, at the very least, ‘a reasonable likelihood that the jury . . . applied the challenged instruction in a way that prevented] the consideration’ of Penry’s mental retardation and childhood abuse. The supplemental instruction therefore provided an inadequate vehicle for the jury to make a reasoned moral response to Penry’s mitigating evidence.” Id., at 799-800 (citations omitted).
It is certainly true that the mandatory aspect of the nullification instruction made petitioner’s instruction distinct from Penry’s. Indeed, the “shall” command in the nullification instruction resolved the ambiguity inherent in the Penry II instruction, which we held was either a nullification instruction or an instruction that “ ‘shackled and confined’ ” Penry’s mitigating evidence within the scope of the imper-missibly narrow special issues. Id., at 798. That being said, the clearer instruction given to petitioner’s jury did not resolve the ethical problem described supra, at 46 and this page. To the contrary, the mandatory language in the charge could possibly have intensified the dilemma faced by ethical jurors. ' Just as in Penry II, petitioner’s jury was required by law to answer a verdict form that made no mention whatsoever of mitigation evidence. And just as in Penry II, the burden of proof on the State was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with the mitigation evidence petitioner presented. Even if we were to assume that the jurors could easily and effectively have comprehended an orally delivered instruction directing them to disregard, in certain limited circumstances, a mandatory written instruction given at a later occasion, that would not change the fact that the “jury was essentially instructed to return a false answer to a special issue in order to avoid a death sentence.” Penry II, 532 U. S., at 801.
There is no principled distinction, for Eighth Amendment purposes, between the instruction given to petitioner’s jury and the instruction in Penry II. Petitioner’s evidence was relevant mitigation evidence for the jury under Tennard and ' Penry I. We therefore hold that the nullification instruction was constitutionally inadequate under Penry II. The judgment of the Texas Court of Criminal Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The text of the special issues given to the jury was as follows: “(1) Was the conduct of the defendant that caused the death of the deceased committed deliberately, and with the reasonable expectation that the death of the deceased or another would result? (2) Is there a probability that the defendant would commit' criminal acts of violence that would constitute a continuing threat to society?” Pet. for Cert. 5.
The supplemental instruction in Penry II stated: “ ‘You are instructed that when you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant’s character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant’s personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues.’ ” 532 U. S., at 789-790 (emphasis added).
Four judges would have found petitioner’s claim procedurally defaulted. See 132 S. W. 3d, at 417 (Hervey, J., concurring); id., at 428 (Holcomb, J., concurring). The majority of the court, however, declined to adopt this holding and reached petitioner’s claims on the merits.
The concurring opinions below straightforwardly recognized this problem. See 132 S. W. 3d 407, 427 (Tex. Crim. App. 2004) (Hervey, J., concurring) (concluding that the “ ‘nullification’ instruction would, as a matter of federal constitutional law, suffer from the same defect as the one in Penry II had applicant presented any mitigating evidence that was beyond ‘the effective reach of the sentencer’ ” and conceding that the instruction given to petitioner may have been inadequate “as a matter of federal constitutional law”); id,., at 428 (Holcomb, J., concurring) (“The nullification instruction provided to Smith’s jury contained the same defects the Supreme Court identified in Penry II. Therefore, the jury was unconstitutionally precluded from considering and giving effect to Smith’s mitigating evidence”).
There is another similarity between this ease and Penry II. In Penry II, we found it significant that the prosecutor admonished the jury to “ ‘follow your oath, the evidence and the law’” prior to the deliberations in which the jury was required to fill out the verdict form. 532 U. S., at 802. We held that this statement sent the jury “mixed signals” and “only reminded the jurors that they had to answer the special issues dishonestly in order to give effect to Penry’s mitigating evidence.” Ibid. The prosecutor here similarly reminded the jury that each and every one of them had promised to “follow the law” and return a “Yes” answer to the special issues so long as the State met its burden of proof. Pet. for Cert. 6. Thus, the nullification instruction presented the same ethical dilemma here and, what is more, it seems that despite the inclusion of the mandatory “shall” language, the nullification instruction may have been more confusing for the jury to implement in practice than the state court assumed.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_state
|
22
|
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".
S. Harold LEVITT, Executor, Plaintiff, Appellant, v. Edward C. JOHNSON, 2d, et al., Defendants, Appellees.
No. 6249.
United States Court of Appeals First Circuit.
Heard May 5, 1964.
Decided July 8, 1964.
Paul L. Ross, New York City, with whom S. Roy Remar, Boston, Mass., Benedict Wolf, and Wolf, Popper, Ross, Wolf & Jones, New York City, were on brief, for appellant.
Edward B. Hanify, Boston, Mass., with whom Truman S. Casner, Joseph P. Rooney, Ansel B. Chaplin, Sumner H. Babcock, James D. St. Clair, Ropes & Gray, Gaston, Snow, Motley & Holt, Bingham, Dana & Gould, and Hale & Dorr, Boston, Mass., were on brief, for appellees.
Philip A Loomis, Jr., Gen. Counsel, Walter P. North, Assoc. Gen. Counsel, George P. Michaely, Jr., Sp. Counsel, and Paul J. Kemp, Atty., Washington, D. C., on brief for Securities and Exchange Commission, amicus curiae.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
This is a suit by a minority stockholder of Fidelity Capital Fund, Inc., a Massachusetts corporation, on behalf of himself and other interested stockholders for the benefit of the corporation. The defendants, in addition to the corporation, are individuals, now or formex-ly directors, and several corporations sought to be charged with conduct in violation of the Investment Company Act of 1940, 15 U.S.C. §§ 80a-l et seq., hereinafter the act. The conduct said to be in violation of the act is described in the opinion of the district court, 222 F.Supp. 80S, and may be summarized for present purposes as the charging of improper and excessive fees. The district court dismissed the action solely because of plaintiff’s failure to allege a prior demand upon the other stockholders, and did not reach the questions defendants attempted to raise on the merits by a motion for summary judgment. Defendants draw our attention to this motion as an alternative basis for sustaining the dismissal, but we are disinclined to pass upon such a motion not considered below, absent a clear showing of its inescapable correctness. This is a complicated action. The eventual record may well raise issues in a somewhat different form, and we do not wish at this juncture to attempt comprehensive rulings. For now, we think it sufficient to say that at least some basis for recovery was well pleaded, and that .with regard to defendants’ claim of acquiescence or waiver there appears to be at least an issue of fact.
The district court correctly decided that the plaintiff had complied with the procedural requirements of F.R.Civ. P. 23(b), by stating, inter alia, the reasons he made no prior demands upon the directors and upon the stockholders. As a matter of substance it is conceded that his reason as to the former, namely, that a majority of the directors were, allegedly, involved in the claimed malfeasance and misfeasance, is adequate.. With respect to the stockholders, plaintiff asserts, inter alia,
“Fund has more than 48,000 stockholders scattered all over the United States whose identity is subject to frequent changes. A demand upon the stockholders to take action would cast an unconscionable financial burden on the plaintiff in that the plaintiff would have to solicit proxies from all of the stockholders residing in every State of the Union and foreign countries. It would involve the conduct of a proxy fight, a proxy fight which would entail prohibitive expenses and would cause undue loss of time with the danger that the claims alleged might be barred by the Statute of Limitations.”
While defendants contend that this is an inadequate excuse for not making a demand upon the stockholders under what might be termed the federal rule if it, rather than some special rule of some-particular state, obtains, we disagree.. We disagree also with their contention that, if there is a difference, the state rule is the one to be applied.
The explanation of our disagreement requires an analysis of the reasons for-requiring an a priori demand. In Hal-prin v. Babbitt, 1 Cir., 1962, 303 F.2d 138, at 141, in discussing these reasons, we said there were two. “The first is to-permit the majority to take some sort of' affirmative action itself.' The second is. to permit the majority to decide, as in. Solomont [infra], that no action be taken by anybody.” This, however, is not an answer to the present question. In Hal-prin v. Babbitt, supra, 92% of the company’s stock was held by one stockholder., We were not, in other words, speaking in the context of 48,000 stockholders, or as. to when such a circumstance might constitute an excuse... Nor does Halprin,. which was a diversity case, answer the-question of what law presently governs.
The district court stated that the law of the state of incorporation normally determines a stockholder’s rights, and that this is so with respect to any derivative action “even if the claim which the-corporation has against the alleged wrongdoer is based on a federal statute.” For this it cited United Copper Securities Co. v. Amalgamated Copper Co., 1917, 244 U.S. 261, 37 S.Ct. 509, 61 L.Ed. 1119 and Price v. Gurney, 1945, 324 U.S. 100, 65 S.Ct. 513, 89 L.Ed. 776. It then stated that it found nothing in the act to suggest that Congress intended to-give shareholders “a direct right, supplementing the derivative right.” From this it concluded that Massachusetts law must control, and that in view of Solomont & Sons Trust, Inc. v. New England Theatres Operating Corp., 1950, 326 Mass. 99, 93 N.E.2d 241, the plaintiff was not excused from making the demand. It accordingly dismissed the complaint.
~ , ,, . Solomont did not involve the present —, , - • '. j , —tr—r——— question, but decided solely that a maToritv of disinterested stockholders could" vote that an "g ctroñ-againsV the directors,even though" valid; should not be^ursTed. . The" distTkt court concluded timt thLTmeant that Massachusetts would not excuse a demand on the majority stock- , ,, , holders, unless, following the directors analogy, they were not disinterested. We do not believe this follows. The fact that a majority of informed disinterested stockholders might decide, for reasons discussed in Solomont, that a suit should not be prosecuted, does not mean that they must be fully instructed in every instance before the suit is instituted. As we pointed out in Halprin v. Babbitt, supra, the minority does not have to obtain the express authorization of the majority before suit is commenced. The demand upon the majority, in other words, does not have this broad purpose. Neither of the more limited purposes we outlined in Halprin copld be accomplish-ed in any real sense unless the demand evoked a full and fair consideration of the issues, in depth, by the other stock-holders. If their number is small, as in Halprin, and the minority could reason-ably be expected to put its case before them, it should be obliged to do so. How,, ,, „ ,, ever, on the allegations of the present \ . , , , ,, , , ?omPlamt not only would such a burden k.ieno™’but n? d™dosn™ tbat ^T be t0 ^ W,°Ul? be IlkeIyJ° Persuade a maj0flty to ,take ?vfthe/Í on>.conversely, pernit an “forlfd decls\on ^ the majority that the action be not instituted.2
As a pointless or, alternatively, impossibly burdensome act it should be excused. Gottesman v. General Motors Corp., 1959, 2 Cir., 268 F.2d 194, 197; Citrin v. Greater New York Industries, S.D.N.Y., 1948, 79 F.Supp. 692, 697; Berg v. Cincinnati, N. & Co. Ry., E.D.Ky., 1944, 56 F.Supp. 842, 845; Pergament v. Frazer, E.D.Mich., 1949, 93 F.Supp. 9, 13. But see Haffer v. Voit, 6 Cir., 1955, 219 F.2d 704, cert. den. 350 U.S. 832, 76 S.Ct. 66, 100 L.Ed. 743; Bruce & Co. v. Bothwell, S.D.N.Y., 1948, 8 F.R.D. 45, 47; Varanelli v. Wood, S.D.N.Y., 1949, 9 F.R.D. 61; Levitan v. Stout, W.D.Ky., 1951, 97 F.Supp. 105, 114.
We need not pursue the inquiry of whether the Massachusetts law is otherwise~becaüse^fTf Is71írsKoüId~Str~ in our opinion, be applied. In this suit based upon the"Investment Company Act the question is not what state law normally determines a shareholder’s rights,^ nor is it whether the act impliedly granted a shareholder a direct personal action, (but cf. Borak v. J. I. Case Co., 7 Cir., 1963, 317 F.2d 838, aff’d 84 S.Ct. 1555). fsTnce this does noF^purport to be one/) Rather, the question is whether the act] I contemplated or impliedly forbade the an-I plication to the assertion of derivative rights of what the court concluded to be a “strict Massachusetts rule.” In this connection we note in section 1(b) a clear declaration of policy. The act is directed to “the national public interest and the interest of investors * * * adversely affected,” and its “purposes * * * with which [its] provisions * * * shall be interpreted, are to mitigate and, so far as is feasible, to eliminate the conditions enumerated.” (ital. suppl.) We do not see how it can be gainsaid that any substantial stiffening of the conditions precedent to the bringing of stockholders’ suits above normal» ^requirements would conflict with this broad declaration. The district court’s reasoning that since the stockholder’s right is a derivative one his right to bring suit must be controlled by the local law of the state of incorporation in the absence of an explicit congressional direction to the contrary negates the intendment of the act and underestimates the role to be played by the federal courts in the implementation of national regulatory legislation. See Note, 50 Va.L. Rev. 365 (1964).
Our views find support in the Supreme Court’s recent opinion in J. I. Case Co. v. Borak, 84 S.Ct. 1555. In that case, involving the Securities Exchange Act of 1934, a stockholder sued to void the merger of his company with another corporation on the ground that the vote to accomplish the merger had been obtained by misrepresentations accompanying the proxy solicitation in violation of section 14(a) of that act. In upholding federal jurisdiction to redress the alleged violations^ the Court not only stated that the courts have power to implement the statute by devising appropriate forms of action to effectuate its purposes where Congress had not specifically done so. but rejected the contention that so doing would be an unwarranted interference with domestic regulation at the state levql. Particularly pertinent is the following language.~ ‘
•y-. — w- - '“[W]e believe that the overriding federal law applicable here would, where the facts required, control the appropriateness of redress despite the provisions of state corporation law, * * * [I] f the law of the-State happened to attach no responsibility to the use of misleading proxy statements, the whole purpose of the section might be frustrated. Furthermore, the hurdles .that the' victim might face (such as- separate^ suits, * * * bringing in all parties necessary for complete relief, etc.) might well prove insuperable to' effective relief.”
We believe a rule under which a demand upon the majority stockholders is a condition that cannot be excused in a case such as this is the type of hurdle that the Investment Company Act, also, forbids.
Judgment will be entered vacating the judgment of the District Court and remanding the action for further proceedings not inconsistent herewith.
. The complaint also charged common law violations, but the dismissal of those causes is not complained of.
. For present purposes we are assuming, but not deciding, that under both state and federal law a fully informed majority, unbiased and unled in any way by the directors, might decide over the wishes of, the minority that a claim involving a violation of the act should not be pursued. But cf. Rogers v. American Can Co., 3 Cir. 1962, 305 F.2d 297.
. Nowhere has this been better stated than in the opinion of the district court in Pomerantz v. Clark, D.Mass., 1951, 101 F.Supp. 341, where it was said at 346, “To prevent these minority members from suing until they have acquired the support of a majority of their fellows is in most cases to throttle them. They must move against inevitable inertia which always favors the status quo, the respectable and the powerful, particularly if, regardless of wrongdoing, a particular company has prospered. They rarely have large funds at their command to circularize and arouse their fellows. And, above all, they are not in a position to state the details of wrongdoing which would persuade unprejudiced' men until after they have brought suit and had the advantage of testimonial compulsion.” See, also. Baker & Cary, Cases on Corporations (3d ed. 1959), p. 233: “Statistics demonstrate that in most instances stockholder proposals receive a minimal. percent of the total votes cast.” New-comer, The Big Business Executive, (1955), p. 9: “In a corporation whose stock is widely distributed the possibility of dissatisfied stockholders mustering the necessary votes to force a change is very slim. It is easier to sell the stock. The cost alone is prohibitive, as was made abundantly clear in the recent New York Central upset. The cost of this proxy battle was estimated to be more, than 1 million dollars. [Citing Fortune] Only when the dissatisfied minority has really important holdings, as in the case of the New York Central, is the chance of get-ting a new deal a real one.”
. Our attention has not been called to Rule 20(a) which the SEC has propounded requiring the company, when soliciting proxies, to include stockholder statements not exceeding one hundred words, and consequently no argument has been based upon it. We do not think that any valid argument could be. Assuming that plaintiff were to uhrase his demand in the form of a vote to bring suit which had to be put to the stockholders so as to receive the benefit of this rule, any contention.that plaintiff could make full disclosure in a 100 word statement (the substantive portion of the present complaint, which is not unduly prolix, fills 13 pages)1 and receive thoughtful and adequate consideration, would be unrealistic. For discussion of the scope of this rule see Loss, Securities Regulation (2d ed. 1961) 1025, 900. That type of demand in our opinion would be meaningless. For a demand of sufficient proportions, assuming that plaintiff were required to make such, he would be on his own.
. We find nothing to the contrary in the cases cited by the court. United Copper Securities v. Amalgamated Copper Co., supra, held that the fact that the cause of action was based upon an alleged violation of the Sherman Act did not obviate, or reduce, the necessity of a demand by the minority stockholders. This is a quite different situation. As the SEC points out in its amicus brief filed herein in opposition to the “Massachusetts rule,” there is a “great difference between the policy underlying the federal antitrust laws and that underlying the Investment " Company Act. On the one hand, the policy of the antitrust laws is the preservation and protection of competition in our economy in its broadest scope. Those laws are thus geared to the protection of competing businesses, as businesses, whether in the corporate form or not. On the other hand, the policy of the Investment Company Act is to provide a comprehensive network of restrictions upon the organization, operation and management of investment companies to the end that individual investors might be protected.” Price v. Gurney, supra, merely involved a question of the statutory jurisdiction of the bankruptcy court.
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_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.
RAPANOS et al. v. UNITED STATES
No. 04-1034.
Argued February 21, 2006
Decided June 19, 2006
M. Reed Hopper argued the cause for petitioners in No. 04-1034. With him on the briefs was Robin L. Rivett. Timothy A. Stoepker argued the cause for petitioners in No. 04-1384. With him on the briefs were Dennis W. Archer and Paul R. Bernard.
Solicitor General Clement argued the cause for respondents in both cases. With him on the briefs were Assistant Attorney General Wooldridge, Deputy Solicitor General Hungar, Malcolm L. Stewart, Greer S. Goldman, Ellen J. Durkee, Todd S. Kim, and Katherine W. Hazard.
Together with No. 04-1384, Carabell et al. v. United States Army Corps of Engineers et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal in both cases were filed for the State of Alaska et al. by David W. Marquez, Attorney General of Alaska, and Ruth Hamilton Heese and John T. Baker, Assistant Attorneys General, Roderick E. Walston, Mark Shurtleff, Attorney General of Utah, Guy R. Martin, Jeffrey Kightlinger, Thomas W. Birmingham, and Daniel S. Hentschke; for the American Farm Bureau Federation by Timothy S. Bishop; for the American Petroleum Institute by Thomas Sayre Llewellyn, Harry M. Ng, and Ralph J. Colleli, Jr.; for the Attainable Housing Alliance by Sebastian Rued; for the Cato Institute by Timothy Lynch; for the Claremont Institute Center for Constitutional Jurisprudence by John G. Eastman and Edwin Meese III; for CropLife America et al. by Richard E. Schwartz; for the Foundation for Environmental and Economic Progress et al. by Virginia S. Albrecht, Deidre G. Duncan, David J. De-Pippo, Ralph W. Holmen, Robin S. Conrad, and Amar D. Sarwal; for the Home Builders Association of Central Arizona by Michael J. Pearce; for the International Council of Shopping Centers et al. by Gus Bauman; for the Mountain States Legal Foundation by William Perry Pendley; for the National Association of Home Builders by Duane J. Desiderio and Thomas J. Ward; for the National Stone, Sand and Gravel Association et al. by Lawrence R. Liebesman; for Pulte Homes, Inc., et al. by Carter G. Phillips and Stephen B. Kinnaird; for the Western Coalition of Arid States by Lawrence S. Bazel and John Briscoe; for John J. Duncan, Jr., by Thomas C. Jackson; and for Charles R. Johnson et al. by Michael E. Malamut, Andrew R. Grainger, Martin J. Newhouse, and Martin S. Kaufman.
Briefs of amici curiae urging affirmance in both eases were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Peter H. Lehner, Daniel Smirlock, Deputy Solicitor General, Benjamin N. Gutman, Assistant Solicitor General, and Lemuel M. Srolovic, Assistant Attorney General, Michael A. Cox, Attorney General of Michigan, Thomas L. Casey, Solicitor General, Susan Shinkman, and Margaret O. Murphy, and by the Attorneys General for their respective jurisdictions as follows: Terry Goddard of Arizona, Mike Beebe of Arkansas, Bill Lockyer of California, Richard Blumenthal of Connecticut, Carl C. Danberg of Delaware, Robert J. Spagnoletti of the District of Columbia, Charles J. Crist, Jr., of Florida, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Kelly A. Ayotte of New Hampshire, Peter C. Harvey of New Jersey, Patri cia A. Madrid of New Mexico, Roy Cooper of North Carolina, Jim Petro of Ohio, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, Henry McMaster of South Carolina, Paul G. Summers of Tennessee, William H. Sorrell of Vermont, Rob McKenna of Washington, and Peggy A Lautenschlager of Wisconsin; for the City of New York by Michael A. Cardozo, Leonard J. Koerner, and Hilary Meltzer; for American Rivers et al. by Howard I. Fox; for the Association of State and Interstate Water Pollution Control Administrators by Timothy J. Dowling; for the Association of State Wetland Managers et al. by Patrick Parenteau; for the Chesapeake Bay Foundation by Jan Goldman-Carter; for Ducks Unlimited, Inc., et al. by James Murphy, Thomas M. France, and Neil S. Kagan; for the Environmental Law Institute by Seth P. Waxman, Louis R. Cohen, and Leslie Carothers; for the National Mitigation Banking Association by Margaret N. Strand, John F. Cooney, and Royal C. Gardner; for the Western Organization of Resource Councils et al. by Charles M. Tebbutt; for Carol M. Browner et al. by Deborah A. Sivas, Lawrence C. Marshall, and Holly D. Gordon; for Jared M. Diamond et al. by Jason C. Rylander; for Rep. John D. Dingell et al. by Robert W. Adler and Amy J. Wildermuth; and for Calvin H. Johnson by Mr. Johnson, pro se.
Briefs of amici curiae were filed in both cases for the American Planning Association by Nancy Stroud; for the Mackinac Center for Public Policy by Patrick J. Wright; for the National Association of Waterfront Employers by Francis Edwin Froelich and Charles T. Carroll, Jr.; and for the National Federation of Independent Business Legal Foundation by Robert R. Gasaway and Ashley C. Parrish.
Mark A. Perry, Daniel J. Popeo, and Paul D. Kamenar filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal in No. 04-1034.
James Blanding Holman TV and Derb S. Carter, Jr., filed a brief for the Ecological Society of America et al. as amici curiae urging affirmance in No. 04-1384.
Briefs of amici curiae were filed in No. 04-1384 for Donald L. Harkins by William J. Reisdorf; and for Macomb County, Michigan, by Mark A. Richardson.
Justice Scalia
announced the judgment of the Court and delivered an opinion, in which
The Chief Justice, Justice Thomas, and Justice Alito join.
In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. 339 F. 3d 447, 449 (CA6 2003) (Rapanos I). Regulators had informed Mr. Rapanos that his saturated fields were “waters of the United States,” 33 U. S. C. § 1362(7), that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.
The burden of federal regulation on those who would deposit fill material in locations denominated “waters of the United States” is not trivial. In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people,” 33 CFR § 320.4(a) (2004). The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915 — not counting costs of mitigation or design changes. Sunding & Zilberman, The Economies of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural Resources J. 59, 74-76 (2002). “[0]ver $1.7 billion is spent each year by the private and public sectors obtaining wetlands permits.” Id., at 81. These costs cannot be avoided, because the Clean Water Act “impose[s] criminal liability,” as well as steep civil fines, “on a broad range of ordinary industrial and commercial activities.” Hanousek v. United States, 528 U. S. 1102, 1103 (2000) (THOMAS, J., dissenting from denial of certiorari). In this litigation, for example, for backfilling his own wet fields, Mr. Rapanos faced 63 months in prison and hundreds of thousands of dollars in criminal and civil fines. See United States v. Rapanos, 235 F. 3d 256, 260 (CA6 2000).
The enforcement proceedings against Mr. Rápanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act — without any change in the governing statute — during the past five Presidential administrations. In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over “the waters of the United States” to cover 270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit — whether man-made or natural, broad or narrow, permanent or ephemeral — through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated “waters of the United States” include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory “waters of the United States” engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a “water of the United States.”
I
Congress passed the Clean Water Act (CWA or Act) in 1972. The Act’s stated objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 86 Stat. 816, 33 U. S. C. § 1251(a). The Act also states that “[i]t is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.” § 1251(b).
One of the statute’s principal provisions is 33 U. S. C. § 1311(a), which provides that “the discharge of any pollutant by any person shall be unlawful.” “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source,” § 1362(12), and “pollutant” is defined broadly to include not only traditional contaminants but also solids such as “dredged spoil,... rock, sand, [and] cellar dirt,” § 1362(6). And, most relevant here, the CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” § 1362(7).
The Act also provides certain exceptions to its prohibition of “the discharge of any pollutant by any person.” § 1311(a). Section 1342(a) authorizes the Administrator of the EPA to “issue a permit for the discharge of any pollutant,... notwithstanding section 1311(a) of this title.” Section 1344 authorizes the Secretary of the Army, acting through the Corps, to “issue permits... for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” § 1344(a), (d). It is the discharge of “dredged or fill material” — which, unlike traditional water pollutants, are solids that do not readily wash downstream — that we consider today.
For a century prior to the CWA, we had interpreted the phrase “navigable waters of the United States” in the Act’s predecessor statutes to refer to interstate waters that are “navigable in fact” or readily susceptible of being rendered so. The Daniel Ball, 10 Wall. 557, 563 (1871); see also United States v. Appalachian Elec. Power Co., 311 U. S. 377, 406 (1940). After passage of the CWA, the Corps initially adopted this traditional judicial definition for the Act’s term “navigable waters.” See 39 Fed. Reg. 12119, codified at 33 CFR § 209.120(d)(1) (1974); see also Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 168 (2001) (SWANCC). After a District Court enjoined these regulations as too narrow, Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (DC 1975), the Corps adopted a far broader definition. See 40 Fed. Reg. 31324-31325 (1975); 42 Fed. Reg. 37144 (1977). The Corps’ new regulations deliberately sought to extend the definition of “the waters of the United States” to the outer limits of Congress’s commerce power. See id., at 37144, n. 2.
The Corps’ current regulations interpret “the waters of the United States” to include, in addition to traditional interstate navigable waters, 33 CFR § 328.3(a)(1) (2004), “[a]ll interstate waters including interstate wetlands,” § 328.3(a)(2); “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” § 328.3(a)(3); “[tributaries of [such] waters,” § 328.3(a)(5); and “[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands),” § 328.3(a)(7). The regulation defines “adjacent” wetlands as those “bordering, contiguous [to], or neighboring” waters of the United States. § 328.3(c). It specifically provides that “[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are 'adjacent wetlands.’” Ibid.
We first addressed the proper interpretation of 33 U. S. C. §1362(7)’s phrase “the waters of the United States” in United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985). That case concerned a wetland that “was adjacent to a body of navigable water,” because “the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondent’s property to... a navigable waterway.” Id., at 131; see also 33 CFR § 328.3(b). Noting that “the transition from water to solid ground is not necessarily or even typically an abrupt one,” and that “the Corps must necessarily choose some point at which water ends and land begins,” 474 U. S., at 132, we upheld the Corps’ interpretation of “the waters of the United States” to include wetlands that “actually abut[ted] on” traditional navigable waters. Id., at 135.
Following our decision in Riverside Bayview, the Corps adopted increasingly broad interpretations of its own regulations under the Act. For example, in 1986, to “clarify” the reach of its jurisdiction, the Corps announced the so-called “Migratory Bird Rule,” which purported to extend its jurisdiction to any intrastate waters “[wjhich are or would be used as habitat” by migratory birds. 51 Fed. Reg. 41217; see also SWANCC, supra, at 163-164. In addition, the Corps interpreted its own regulations to include “ephemeral streams” and “drainage ditches” as “tributaries” that are part of the “waters of the United States,” see 33 CFR § 328.3(a)(5), provided that they have a perceptible “ordinary high water mark” as defined in § 328.3(e). 65 Fed. Reg. 12823 (2000). This interpretation extended “the waters of the United States” to virtually any land feature over which rainwater or drainage passes and leaves a visible mark— even if only “the presence of litter and debris.” 33 CFR § 328.3(e). See also U. S. General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on Government Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction, GAO-04-297, pp. 20-22 (Feb. 2004) (hereinafter GAO Report), http:// www.gao.gov/new.items/d04297.pdf (all Internet materials as visited June 9, 2006, and available in Clerk of Court’s case file). Prior to our decision in SWANCC, lower courts upheld the application of this expansive definition of “tributaries” to such entities as storm sewers that contained flow to covered waters during heavy rainfall, United States v. Eidson, 108 F. 3d 1336, 1340-1342 (CA11 1997), and dry arroyos connected to remote waters through the flow of groundwater over “centuries,” Quivira Mining Co. v. EPA, 765 F. 2d 126, 129 (CA10 1985).
In SWANCC, we considered the application of the Corps’ “Migratory Bird Rule” to “an abandoned sand and gravel pit in northern Illinois.” 531 U. S., at 162. Observing that “[i]t was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview,” id., at 167 (emphasis added), we held that Riverside Bayview did not establish “that the jurisdiction of the Corps extends to ponds that are not adjacent to open water,” 531 U. S., at 168 (emphasis deleted). On the contrary, we held that “nonnavigable, isolated, intrastate waters,” id., at 171 — which, unlike the wetlands at issue in Riverside Bayview, did not “actually abu[t] on a navigable waterway,” 531 U. S., at 167 — were not included as “waters of the United States.”
Following our decision in SWANCC, the Corps did not significantly revise its theory of federal jurisdiction under § 1344(a). The Corps provided notice of a proposed rule-making in light of SWANCC, 68 Fed. Reg. 1991 (2003), but ultimately did not amend its published regulations. Because SWANCC did not directly address tributaries, the Corps notified its field staff that they “should continue to assert jurisdiction over traditional navigable waters... and, generally speaking, their tributary systems (and adjacent wetlands).” 68 Fed. Reg. 1998. In addition, because SWANCC did not overrule Riverside Bayview, the Corps continues to assert jurisdiction over waters “ ‘neighboring’ ” traditional navigable waters and their tributaries. 68 Fed. Reg. 1997 (quoting 33 CFR § 328.3(c) (2002)).
Even after SWANCC, the lower courts have continued to uphold the Corps’ sweeping assertions of jurisdiction over ephemeral channels and drains as “tributaries.” For example, courts have held that jurisdictional “tributaries” include the “intermittent flow of surface water through approximately 2.4 miles of natural streams and manmade ditches (paralleling and crossing under 1-64),” Treacy v. Newdunn Assoc., 344 F. 3d 407, 410 (CA4 2003); a “roadside ditch” whose water took “a winding, thirty-two-mile path to the Chesapeake Bay,” United States v. Deaton, 332 F. 3d 698, 702 (CA4 2003); irrigation ditches and drains that intermittently connect to covered waters, Community Assn. for Restoration of Environment v. Henry Bosma Dairy, 305 F. 3d 943, 954-955 (CA9 2002); Headwaters, Inc. v. Talent Irrigation Dist., 243 F. 3d 526, 534 (CA9 2001); and (most implausibly of all) the “washes and arroyos” of an “arid development site,” located in the middle of the desert, through which “water courses... during periods of heavy rain,” Save Our Sonoran, Inc. v. Flowers, 408 F. 3d 1113, 1118 (CA9 2005).
These judicial constructions of “tributaries” are not outliers. Rather, they reflect the breadth of the Corps’ determinations in the field. The Corps’ enforcement practices vary somewhat from district to district because “the definitions used to make jurisdictional determinations” are deliberately left “vague.” GAO Report 26; see also id., at 22. But district offices of the Corps have treated, as “waters of the United States,” such typically dry land features as “arroyos, coulees, and washes,” as well as other “channels that might have little water flow in a given year.” Id., at 20-21. They have also applied that definition to such man-made, intermittently flowing features as “drain tiles, storm drains systems, and culverts.” Id., at 24 (footnote omitted).
In addition to “tributaries,” the Corps and the lower courts have also continued to define “adjacent” wetlands broadly after SWANCC. For example, some of the Corps’ district offices have concluded, that wetlands are “adjacent” to covered waters if they are hydrologically connected “through directional sheet flow during storm events,” GAO Report 18, or if they lie within the “100-year floodplain” of a body of water — that is, they are connected to the navigable water by flooding, on average, once every 100 years, id., at 17, and n. 16. Others have concluded that presence within 200 feet of a tributary automatically renders a wetland “adjacent” and jurisdictional. Id., at 19. And the Corps has successfully defended such theories of “adjacency” in the courts, even after SWANCC’s excision of “isolated” waters and wetlands from the Act’s coverage. One court has held since SWANCC that wetlands separated from flood control channels by 70-foot-wide berms, atop which ran maintenance roads, had a “significant nexus” to covered waters because, inter alia, they lay “within the 100 year floodplain of tidal waters.” Baccarat Fremont Developers, LLC v. Army Corps of Engineers, 425 F. 3d 1150, 1152, 1157 (CA9 2005). In one of the cases before us today, the Sixth Circuit held, in agreement with “[t]he majority of courts,” that “while a hydrological connection between the non-navigable and navigable waters is required, there is no ‘direct abutment’ requirement” under SWANCC for “‘adjacency.’” 376 F. 3d 629, 639 (2004) (Rapanos II). And even the most insubstantial hydrologic connection may be held to constitute a “significant nexus.” One court distinguished SWANCC on the ground that “a molecule of water residing in one of these pits or ponds [in SWANCC] could not mix with molecules from other bodies of water” — whereas, in the case before it, “water molecules currently present in the wetlands will inevitably flow towards and mix with water from connecting bodies,” and “[a] drop of rainwater landing in the Site is certain to intermingle with water from the [nearby river].” United States v. Rueth Development Co., 189 F. Supp. 2d 874, 877-878 (ND Ind. 2002).
II
In these consolidated cases, we consider whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute “waters of the United States” within the meaning of the Act. Petitioners in No. 04-1034, the Rápanos and their affiliated businesses, deposited fill material without a permit into wetlands on three sites near Midland, Michigan: the “Salzburg site,” the “Hines Road site,” and the “Pine River site.” The wetlands at the Salzburg site are connected to a man-made drain, which drains into Hoppler Creek, which flows into the Kawkawlin River, which empties into Saginaw Bay and Lake Huron. See Brief for United States in No. 04-1034, p. 11; 339 F. 3d, at 449. The wetlands at the Hines Road site are connected to something called the “Rose Drain,” which has a surface connection to the Tittabawassee River. App. to Pet. for Cert, in No. 04-1034, pp. A23, B20. And the wetlands at the Pine River site have a surface connection to the Pine River, which flows into Lake Huron. Id., at A23-A24, B26. It is not clear whether the connections between these wetlands and the nearby drains and ditches are continuous or intermittent, or whether the nearby drains and ditches contain continuous or merely occasional flows of water.
The United States brought civil enforcement proceedings against the Rapanos petitioners. The District Court found that the three described wetlands were “within federal jurisdiction” because they were “ 'adjacent to other waters of the United States,’ ” and held petitioners liable for violations of the CWA at those sites. Id., at B32-B35. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed, holding that there was federal jurisdiction over the wetlands at all three sites because “there were hydrological connections between all three sites and corresponding adjacent tributaries of navigable waters.” 376 F. 3d, at 643.
Petitioners in No. 04-1384, the Carabells, were denied a permit to deposit fill material in a wetland located on a triangular parcel of land about one mile from Lake St. Clair. A man-made drainage ditch runs along one side of the wetland, separated from it by a 4-foot-wide man-made berm. The berm is largely or entirely impermeable to water and blocks drainage from the wetland, though it may permit occasional overflow to the ditch. The ditch empties into another ditch or a drain, which connects to Auvase Creek, which empties into Lake St. Clair. See App. to Pet. for Cert, in No. 04-1384, pp. 2a-3a.
After exhausting administrative appeals, the Carabell petitioners filed suit in the District Court, challenging the exercise of federal regulatory jurisdiction over their site. The District Court ruled that there was federal jurisdiction because the wetland “is adjacent to neighboring tributaries of navigable waters and has a significant nexus to ‘waters of the United States.’” Id., at 49a. Again the Sixth Circuit affirmed, holding that the Carabell wetland was “adjacent” to navigable waters. 391 F. 3d 704, 708 (2004) (Carabell).
We granted certiorari and consolidated the cases, 546 U. S. 932 (2005), to decide whether these wetlands constitute “waters of the United States” under the Act, and if so, whether the Act is constitutional.
Ill
The Rapanos petitioners contend that the terms “navigable waters” and “waters of the United States” in the Act must be limited to the traditional definition of The Daniel Ball, which required that the “waters” be navigable in fact, or susceptible of being rendered so. See 10 Wall, at 563. But this definition cannot be applied wholesale to the CWA. The Act uses the phrase “navigable waters” as a defined term, and the definition is simply “the waters of the United States.” 33 U. S. C. § 1362(7). Moreover, the Act provides, in certain circumstances, for the substitution of state for federal jurisdiction over “navigable waters... other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce... including wetlands adjacent thereto.” § 1344(g)(1) (emphasis added). This provision shows that the Act’s term “navigable waters” includes something more than traditional navigable waters. We have twice stated that the meaning of “navigable waters” in the Act is broader than the traditional understanding of that term, SWANCC, 531 U. S., at 167; Riverside Bayview, 474 U. S., at 133. We have also emphasized, however, that the qualifier “navigable” is not devoid of significance, SWANCC, supra, at 172.
We need not decide the precise extent to which the qualifiers “navigable” and “of the United States” restrict the coverage of the Act. Whatever the scope of these qualifiers, the CWA authorizes federal jurisdiction only over “waters.” 33 U. S. C. § 1362(7). The only natural definition of the term “waters,” our prior and subsequent judicial constructions of it, clear evidence from other provisions of the statute, and this Court’s canons of construction all confirm that “the waters of the United States” in § 1362(7) cannot bear the expansive meaning that the Corps would give it.
The Corps’ expansive approach might be arguable if the CWA defined “navigable waters” as “water of ±he United States.” But “the waters of the United States” is something else. The use of the definite article (“the”) and the plural number (“waters”) shows plainly that § 1362(7) does not refer to water in general. In this form, “the waters” refers more narrowly to water “[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,” or “the flowing or moving masses, as of waves or floods, making up such streams or bodies.” Webster’s New International Dictionary 2882 (2d ed. 1954) (hereinafter Webster’s Second). On this definition, “the waters of the United States” include only relatively permanent, standing or flowing bodies of water. The definition refers to water as found in “streams,” “oceans,” “rivers,” “lakes,” and “bodies” of water “forming geographical features.” Ibid. All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. Even the least substantial of the definition’s terms, namely, “streams,” connotes a continuous flow of water in a permanent channel— especially when used in company with other terms such as “rivers,” “lakes,” and “oceans.” None of these terms encompasses transitory puddles or ephemeral flows of water.
The restriction of “the waters of the United States” to exclude channels containing merely intermittent or ephemeral flow also accords with the commonsense understanding of the term. In applying the definition to “ephemeral streams,” “wet meadows,” storm sewers and culverts, “directional sheet flow during storm events,” drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term “waters of the United States” beyond parody. The plain language of the statute simply does not authorize this “Land Is Waters” approach to federal jurisdiction.
In addition, the Act’s use of the traditional phrase “navigable waters” (the defined term) further confirms that it confers jurisdiction only over relatively permanent bodies of water. The Act adopted that traditional term from its predecessor statutes. See SWANCC, 531 U. S., at 180 (Stevens, J., dissenting). On the traditional understanding, “navigable waters” included only discrete bodies of water. For example, in The Daniel Ball, we used the terms “waters” and “rivers” interchangeably. 10 Wall., at 563. And in Appalachian Electric, we consistently referred to the “navigable waters” as “waterways.” 311 U. S., at 407-409. Plainly, because such “waters” had to be navigable in fact or susceptible of being rendered so, the term did not include ephemeral flows. As we noted in SWANCC, the traditional term “navigable waters” — even though defined as “the waters of the United States” — carries some of its original substance: “[I]t is one thing to give a word limited effect and quite another to give it no effect whatever.” 531 U. S., at 172. That limited effect includes, at bare minimum, the ordinary presence of water.
Our subsequent interpretation of the phrase “the waters of the United States” in the CWA likewise confirms this limitation of its scope. In Riverside Bayview, we stated that the phrase in the Act referred primarily to “rivers, streams, and other hydrographic features more conventionally identifiable as ‘waters’” than the wetlands adjacent to such features. 474 U. S., at 131 (emphasis added). We thus echoed the dictionary definition of “waters” as referring to “streams and bodies forming geographical features such as oceans, rivers, [and] lakes.” Webster’s Second 2882 (emphasis added). Though we upheld in that case the inclusion of wetlands abutting such a “hydrographic featur[e]” — principally due to the difficulty of drawing any clear boundary between the two, see 474 U. S., at 132; Part IV, infra — nowhere did we suggest that “the waters of the United States” should be expanded to include, in their own right, entities other than “hydrographic features more conventionally identifiable as ‘waters,’” id., at 131. Likewise, in both Riverside Bayview and SWANCC, we repeatedly described the “navigable waters” covered by the Act as “open water” and “open waters.” See Riverside Bayview, supra, at 132, and n. 8, 134; SWANCC, supra, at 167, 172. Under no rational interpretation are typically dry channels described as “open waters.”
Most significant of all, the CWA itself categorizes the channels and conduits that typicálly carry intermittent flows of water separately from “navigable waters,” by including them in the definition of “ ‘point source.’ ” The Act defines “ ‘point source’” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U. S. C. § 1362(14). It also defines “ ‘discharge of a pollutant’ ” as “any addition of any pollutant to navigable waters from any point source.” §1362(12)(A) (emphasis added). The definitions thus conceive of “point sources” and “navigable waters” as separate and distinct categories. The definition of “discharge” would make little sense if the two categories were significantly overlapping. The separate classification of “ditch[es], channels], and conduit[s]” — which are terms ordinarily used to describe the watercourses through which intermittent waters typically flow — shows that these are, by
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_genresp1
|
H
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
In the Matter of UNISERVICES, INC., Debtor. Arthur A. FAIRBANKS, as Trustee, etc., Petitioner-Appellee, v. William H. DUDENHOFFER et al., Respondents-Appellants.
No. 74-1486.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 20, 1975.
Decided May 14, 1975.
Gary A. Goldstein, Baltimore, Md., Douglas Shortridge, Indianapolis, Ind., for respondents-appellants.
Sigmund J. Beck, Marvin L. Hackman, Gordon D. Wishard, Indianapolis, Ind., for petitioner-appellee.
Before FAIRCHILD and MARKEY, Chief Judges, and STEVENS, Circuit Judge.
Chief Judge Howard T. Markey of the United States Grfurt of Customs and Patent Appeals is sitting by designation. . s-' !
MARKEY, Chief Judge.
This is an appeal from the judgment and order of the district court sustaining, with modification, the order of the bankruptcy judge declaring that Dudenhoffer had certain duties enforceable in equity by the trustee, Fairbanks. We affirm.
Background
On December 8, 1970, Fairbanks was appointed Trustee in Reorganization of a publicly held Delaware corporation, Uniservices, Inc. (Debtor), under Chapter X of the Bankruptcy Act, Crystal Industrial Services, Inc. (Crystal) is a Delaware Corporation wholly owned by Debtor. The business involved is that of providing industrial laundry, uniform rental, shop towel, and dust control services (industrial laundry) in central Indiana.
Dudenhoffer and certain members of his family had sold the assets and business of an Indiana corporation named Crystal Industrial Services Inc. to Debtor in 1966. At the time of the bankruptcy judge’s order, Dudenhoffer et al. still held 20.77% of Debtor. Dudenhoffer served as a director, executive vice-president and president of Debtor and of Crystal after the latter was organized to receive the assets sold by Dudenhoffer et al. From August 1, 1966, to December 8, 1970, Dudenhoffer was the full time general manager and chief executive officer of Crystal. When Fairbanks took over as trustee, he continued Dudenhoffer in that employment. On August 31, 1972, Fairbanks terminated Dudenhoffer’s employment. Dudenhoffer does not challenge the bankruptcy judge’s finding of good cause for his termination.
No written employment agreement between Dudenhoffer and Crystal, Debtor, or Fairbanks ever existed. Of the five members of the board of directors and executive committee of Debtor, all but Dudenhoffer and Herman Miller had executed employment contracts having covenants not to compete. Miller left Debt- or’s employ, resigned from the board of directors, and set up a business in Florida which apparently solicited customers and employees from Debtor’s Florida subsidiary. At Dudenhoffer’s urging, Fairbanks instituted court action in Florida against Miller which resulted in a consent order wherein Miller agreed to refrain from solicitation of customers and employees of Debtor’s Florida subsidiary for a specified time.
At the time of his discharge, Dudenhoffer refused, until the matter could be settled by a court, to sign an agreement not to compete with Crystal. On September 25, 1972, Fairbanks petitioned for a declaration of rights in this regard. Whether Dudenhoffer had a duty not to compete with or to solicit customers of Crystal appeared to the bankruptcy judge to require such declaration in aid of a determination of whether a plan of reorganization was possible in the Chapter X proceedings.
After an evidentiary hearing and consideration of . the briefs the bankruptcy judge entered the following:
ORDER
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that:
1. William H. Dudenhoffer has a duty and obligation, which is enforceable in equity by the Trustee or any assignee or successor in interest to the business of Crystal Industrial Services, Inc. not, for a period of two (2) years from and after August 31, 1972, to engage, directly or indirectly, either as a principal, officer, employee or otherwise, in the industrial laundry, uniform, garment, towel or dust control rental business within a radius of seventy-five (75) miles in any direction from a line drawn directly from the City of Indianapolis, Indiana, to the City of Fort Wayne, Indiana, except as an employee of the Trustee or any assignee or successor in interest to the business of Crystal Industrial Services, Inc.
2. William H. Dudenhoffer has a duty and obligation, which is enforceable in equity by the Trustee or any assignee or successor in interest to the business of Crystal Industrial Services, Inc., not, for a period of two (2) years from and after August 31, 1972, directly or indirectly, either as a principal, officer, employee or otherwise, serve or attempt to provide any industrial laundry, uniform, garment, towel or dust control services to any customers of Crystal Industrial Services, Inc., who were customers of Crystal Industrial Services, Inc. on August 31, 1972, except as an employee of the Trustee or any assignee or successor in interest to the business of Crystal Industrial Services, Inc.
3. No injunction will issue at the present time in the absence of evidence that William H. Dudenhoffer has violated or threatens to violate his duties and obligations herein; but the Court will retain jurisdiction of this matter for the purpose of receiving and hearing any subsequent petition or petitions by the Trustee or any assignee or successor in interest to the business of Crystal Industrial Services, Inc. alleging a violation of paragraphs 1 or 2 of this Order, or both.
4. The costs of this proceeding are taxed against the Respondent, the amount of which to be determined at a later date.
ENTERED at Indianapolis, Indiana, this 14 day of June, 1973.
The district court, after a hearing and consideration of the briefs and transcript, found sufficient evidence to sustain the bankruptcy judge’s Findings, Conclusions and Order and affirmed them in the order on review. In that order, however, the district court reversed the non-competition portion (par. 1) of the bankruptcy judge’s order and instructed that it be re-entered to provide for a non-competition period of no more than one year.
The Issue
The sole issue before us is the validity of the declaration that Dudenhoffer had a duty to refrain from serving or attempting to serve Crystal’s August 31, 1972 customers for two years after that date and a duty to refrain from engaging in the industrial laundry business within the specified geographical area for one year after his August 31, 1972 discharge.
Dudenhoffer’s brief repeatedly (and erroneously) stated that he was “enjoined.” Apparently he had refrained from competition for the nine month period between his discharge and the date of the bankruptcy judge’s order. For that reason, as the order stated, no injunction issued. His election to await a final court declaration of his duty and obligation before competing cannot be equated with an injunction.
OPINION
Determination of the extent and nature of a corporation’s property is a required element in the evaluation, by a trustee in bankruptcy, of a proposed Chapter X reorganization plan. To that end, it is often necessary and proper for a federal court sitting in bankruptcy matters to determine that which constitutes protectible property under state law and to declare property rights accordingly. See, for example, In re Bettinger Corp., 197 F.Supp. 273 (D.Mass'. 1961). Our touchstone on review in this case is Indiana law.
In Miller v. Ortman, 235 Ind. 641, 136 N.E.2d 17 (1956), the highest Indiana court stated:
Public policy is committed to the proposition that a man is free to conduct a lawful business and that the good will of a business, including contracts with its dealers and representatives and confidential information, such as names and addresses and requirements of customers, and the advantage acquired through representative contact with the trade in the area of their application, is a property right which an owner is entitled to protect. [Footnote omitted and emphasis added.]
That Crystal’s customer information constitutes protectible property is underscored by the assignment thereto of independent market values, more fully discussed below. In Miller, the court saw such property as protectible by contract and, absent a contract, against conspiracy to appropriate by unlawful acts. Once found protectible, the property may be protected by a court declaration of rights.
Notwithstanding a determination of Crystal’s property, we must face here, as we often do, the need to balance competing rights. Dudenhoffer’s right to engage in the business in which he had long been active, and to call on customers of his former employer, cannot be lightly disregarded. Nor can the rights of Debtor in its information-type property and its expectations of confidentiality be ignored. Each party’s duties and rights must be tempered with consideration of the other’s; the final consideration being the public’s interest in competition which is both fair and unfettered. The balance of duties and rights which the district court struck herein is reasonable as between the parties and is not oppressive to the public interest.
In an attempt to show that Debtor’s rights were given excessive weight, Dudenhoffer challenges the confidentiality of Crystal’s customer data on the ground that anyone could learn the customers’ identity by surveillance of salesmen on their routes. The obvious cannot be secret or confidential. See Smith v. Dravo Corp., 203 F.2d 369 (7th Cir. 1953). But more than customer identity — more than a mere list of names and addresses — is involved here. The data Crystal maintains extends to particular requirements, preferences, and habits of individual customers. None of those factors could be learned by surveillance. Hence, they could be maintained secret.
Dudenhoffer further contends that certain customer data is not secret because it is generally known in the trade. Although the evidence indicates that some of Crystal’s data might be known to competitors, we do not find Crystal’s property right, insofar as it may be enforceable against Dudenhoffer, to be effected. Our inquiry is not how others could have acquired the data; but rather, how did Dudenhoffer acquire it? Dudenhoffer gained his knowledge of Crystal’s trade data in confidence. Use of information gained through lawful inspection and surveillance cannot be restricted; use of the same information disclosed in confidence may be restricted. See Smith v. Dravo Corp., supra. It is immaterial that some of Crystal’s competitors may be in legitimate possession of some portion of its secret trade data.
The bankruptcy judge found that Dudenhoffer was estopped by his prior conduct to deny that the trade routes and customer service contracts are trade secrets as to him. We agree. Dudenhoffer and his family sold the assets of Crystal to Debtor with “trade routes, covenants and agreements” valued at $1,500,000. The last annual report that Debtor published prior to reorganization valued “trade names, routes and service contracts” at $1,092,725. As a corporate officer Dudenhoffer treated Crystal’s trade data as secret by requiring employees to sign agreements against their disclosure, by emphasizing the need for internal security concerning the data and further by requiring Crystal’s prospective purchasers and other subsidiaries of Debtor who were given non-public information to enter agreements not to solicit Crystal’s customers for two years. While this action was before the bankruptcy judge, Dudenhoffer urged Fairbanks to challenge Herman Miller’s solicitation of Debtor’s customers in Florida. Dudenhoffer consistently treated Debtor’s trade data as a valuable asset.
From all the above, we conclude that the district court committed no error in protecting Debtor’s confidential information by imposing upon Dudenhoffer the duty not to solicit customers of Crystal for the two years following his discharge from Debtor’s employ.
The foregoing considerations are based on the duty, which Dudenhoffer owed Debtor, of respecting information received in confidence. It is of no import that Dudenhoffer consistently refused to recognize that duty and refused to agree not to compete and not to solicit Crystal’s customers for a limited period. We are in agreement with the statement of the Indiana Supreme Court, made by way of dictum in Westervelt v. National Paper & Supply Co., 154 Ind. 673, 57 N.E. 552 (1900), that:
He [employee] occupies a confidential relation to appellee [employer], and in such case the law raises an implied contract between them that the employe will not disclose any trade secret imparted to him or discovered by him in the course of his employment. A disclosure of such secrets thus acquired is not only a breach of contract on his part, but is a breach of trust which a court of equity will prevent.
The district court held Dudenhoffer to be bound to an implied, limited covenant not to compete with Crystal and held that covenant as continuing for a reasonable time after his separation. We agree that on the facts of this case, a court sitting in equity may imply such a limited agreement not to compete. Because of his standing in the hierarchy of the corporation, Dudenhoffer was able to and did demand covenants not to compete from employees, which covenants continued for one year after termination of their employment. He refused, when requested, to make such commitment himself. We know of no reason in equity why Dudenhoffer should escape the restriction he imposed on others merely because of his superior corporate position or because of the admittedly justifiable termination of his employment. The extent of the implied covenant imposed by the district court is coincident in scope of time and geographical area with covenants imposed by Dudenhoffer on other employees.
After concluding that appellant is bound by an implied covenant, the terms of which are definite, we have only to decide whether those terms are reasonable. A restraint on competition must not exceed the legitimate individual interest served by the restraint. Buanno v. Weinraub, 226 Ind. 557, 81 N.E.2d 600 (1948); Grand Union Tea Co. v. Walker, 208 Ind. 245, 195 N.E. 277 (1935); Miller v. Frankfort Bottle Gas, Inc., 136 Ind.App. 456, 202 N.E.2d 395 (1964), and cf. Donahue v. Permacel Tape Corp., 234 Ind. 398, 127 N.E.2d 235 (1955); Struever v. Monitor Coach Co., 294 N.E.2d 654 (Ind.App.1973). Debtor serves customers throughout the area within 75 miles of a line between the cities of Indianapolis and Fort Wayne. The one year period of non-competition is not unreasonable. We note that periods of as long as five years have been held reasonable in Indiana. Miller v. Frankfort Bottle Gas, supra.
Accordingly, the decision of the district court is in all respects affirmed.
. Assuming that Dudenhoffer avoided risk by refraining from competition until the district court’s order of April 4, 1974, though under no injunction to do so, he was free, as of that date, to compete without risk of violating any declared duty. In view of the count’s ‘reduction of the non-competition period, he has been without such risk since August 31, 1973. The order respecting customer solicitation terminated August 31, 1974. Though designated “orders,” the actions of the bankruptcy and district judges constituted declarations of rights.
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_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
H. W. PETERS CO., Inc., v. MacDONALD et al.
No. 422.
Circuit Court of Appeals, Second Circuit.
Aug. 17, 1934.
CHASE, Circuit Judge, dissenting.
Harold E. Cole, of Boston, Mass. (Harold E. Cole and Vernon W. Marr, both of Boston, Mass., of counsel), for appellant.
Melville Church, Clarence B. Des Jardins, and Henry H. Benjamin, all of Washington, D. C., for appellees.
Before L. • HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge
(after stating the facts as above).
This suit is for infringement of United States patent No. 1,570,776. We heretofore held the patent valid and infringed by the defendants [H. W. Peters Co., Inc. v. MacDonald, L. G. Balfour Co., Intervener (C. C. A.) 59 F.(2d) 974] in an opinion by Judge Mantón, and a decree was entered on our mandate for an injunction and the usual reference as to damages and profits.
The invention relates to finger rings and more particularly to means whereby an onyx or other stone can be set without requiring the services of an expert. Under the earlier practice, drilled stone rings were made, and, where emblems were mounted on the stone, studs projected from the monogram or emblem were inserted in the holes that had been drilled. This mode of assembling the metal with the stone required considerable skill, and often resulted in splitting the stone and consequent loss of time and material.
We held that complainant’s device did not require skilled workmen in order to attach the emblem to the stone. The patentee’s method of holding the emblem in a frame which at once encased the stone, protected it from extraordinary injuries and avoided the danger of splitting it by drilling and inserting studs in the drilled holes had resulted in a ring that received wide acceptance and could be made with a saving of time, labor, and expense. Nothing was shown in the prior art which affected the validity of the patent. We held the patent, infringed by a ring in which the stone was inserted into the frame through an opening on the inside of the ring.
After the foregoing decision, the complainant took steps to apprise defendants and their customers of its rights and claims and to warn them against future infringements. Upon a petition filed by the defendants, after permission from this court, 61 F.(2d) 1031, the case was reopened in order to permit them to amend their answer so as to set forth what they regarded as misrepresentations of the scope of our decision and unfair threats and intimidation. After the answer had been thus amended, the cause again came on for trial before Judge Thomas, who hold that the scope of the decree had been misrepresented and customers had been threatened and intimidated. He entered a modified decree; holding the patent valid and infringed by the defendants and enjoined them from further acts of infringement, but, because of the inequitable conduct of complainant, deprived it of the right to an accounting and enjoined it from publishing or otherwise disseminating any statement which should not accurately indicate the scope of our decision and restrained it from using the derision to threaten or induce customers of defendants to break or cancel contracts for the purchase of rings which did not infringe the patent. 5 F. Supp. 692.
The two claims of the patent are as follows:
“1. An article of jewelry including a base, a bolding device integral therewith having an open face, there being also a second open face, and a member insei table through said second open face into the holding device for exposure through the first mentioned open face, and meansi for retaining the inserted member against removal through said second open face.
“2. An article of jewelry including a base, a holding device integral therewith having an open face and a second face, a separate member, said second face having means for the insertion of said member for' exposure through the first named face, said first named face having moans for preventing removal of said member therethrough, and means movable to position across said second face for retaining the member against withdrawal.”
There appears to have been nothing on the market having the useful attributes of complainant’s stone protected rings except its own, those of the defendant L. G. Balfour Company (which we held infringed the patent), the so-called Pittsfield ring (Exhibit D-20), and the soldered ring (Exhibit D-24), which were sold by the same defendant. There is some testimony as to others which, however, were not identified or produced on the trial. It is argued that Exhibits D-20 and D-24 do not infringe the patent. This is said to be the ease because the frame integrally united to the body of the ring has no second open face through which the stone is inserted to be exposed through an open face of the holding device, which is partially closed by the emblem or mounting, and also because there are no retaining means for closing the second open face of the holding device or frame. It is true that in both Exhibits D-20 and D-24 there is no way of inserting the stone after the frame has once been placed in position on the shank of the ring and that the only second open face is the opening in the bottom of the frame. If “a holding device integral” with the base (to use the wording of the claims) means “integral” before the stone is inserted, Exhibits D-20 and D-24 do not infringe. But “integral” may mean “integral” when finally assembled, and, if it does, each device has two open faces, one at the top of the frame or collar and one at the bottom. The stone is inserted through the bottom opening, as was done in the ring we held to infringe on the former appeal, and eaeh ring possesses means, though differing from those specifically described in the patent, for retaining the stone in place.
It must be' remembered that if possible the claims should be read with enough liberality to preserve the ihvention, and, if evasions as obvious as those in Exhibits D-20 and D-24 enable infringers to escape the patent, though it has received the tribute of success in the commercial world, will have little practical chance of survival. It is hard to imagine a journeyman mechanic, familiar with complainant’s patent, who could not quickly devise such rings as Balfour has put on the market, if his purpose was to avoid the claims while reaping the benefits of the invention. , The real contribution of the inventor to the art was the elimination of drill holes and studs for fastening emblems to stones in rings, incasing the stones in a frame, and providing a means for firmly holding them there. The defendant Balfour does this in essentially the way described in the patent, and makes a product closely parallel to complainant’s. Balfour’s rings either infringe, or might reasonably have been supposed by complainant to do so.
In view of the fact that the patent apparently covered all forms of stone protected rings actually on the market or disclosed in the evidence, we think complainant could not properly be deprived of its right to prove damages against infringers under the reference granted in the original decree merely because it had notified the public that our decision covered all stone rings of that type. We cannot suppose that complainant would attempt to forecast the future and say that the deeree would embrace any rings that might be devised thereafter. The utmost that can rationally be imputed to its warnings is the claim that all defendants’ rings infringed. Anything further, if proclaimed from the house tops, would be mere “brutum fulmen.”
The article in the Dedham Transcript is relied on as unfair. We cannot see that it was really of any importance. It said that Peters had won his patent suit, praised his rings, and indicated that his company had been awarded $22,000 damages by the court. This was a careless statement and seems to have been repeated in a smaller figure on another occasion, but the fact that the article suggested that Peters’ cause of action had been reduced to judgment ought not to make him an outlaw. If it had said that Peters would recover $22,000 on the accounting, no one could object.
The warning to Balfour not to fill his contract to supply rings to the Pittsfield High School class related to a type of ring that probably infringed. There was no claim that the patent covered every possible stone protected ring, but at most only insistence that defendants’ rings came within the scope of our decision.
Much was made by the trial court of the pamphlet commenting on Judge Manton’s opinion sustaining the patent and holding that it was infringed, but we can find nothing that passes the bounds of legality or propriety.
The letters (Exhibits D-8 and D-26) stating that certain contracts of Balfour to sell stone protected rings were illegal and that he had no right to manufacture this “type of jewelry,” and that, if his customers wished to buy, they should purchase of complainant, ought not to deprive the latter of a recovery of loss of profits. They amounted to a mere reiteration of its position, showed no wrongful or malicious purpose and involved no illegal act.
The interview with Mr. Stewart of the Virginia Military Institute likewise amounted to no more than the assertion of Peters! patent rights with some braggadocio anent the damages to he recovered from Balfour.
There is no proof that the defendants have suffered any damages from complainant’s hortatory dynamics. The antics of competitors (and patentees who have won a lawsuit are no exception) often are far from edifying. At times neither Peters nor Balfour has shown exemplary taste, and we would advise them to exercise more self-restraint in the future. But the case is far from one where a patentee has deliberately or inexcusably misrepresented the scope of a decree in his favor in important respects and caused his competitors to suffer serious damage. Such was the case according to the finding of: the majority of the court in Art Metal Works v. Abraham & Straus (C. 0. A.) 70 F. (2d) 641. Here there was no deliberate or even inexcusable misrepresentation as to any important matter. Accordingly the decree should he reversed, and the earlier decree reinstated, with costs to the complainant.,
CHASE, Circuit Judge, dissents without opinion.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_numappel
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of 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.
Max J. KUNEY, Jr., and Constance F. Kuney, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 72-2622.
United States Court of Appeals, Ninth Circuit.
Oct. 2, 1975.
Gary C. Randall (argued), of Lukins, Myers, Annis, Seelye, Bastine & Randall, Spokane, Wash., for plaintiffs-appellants.
Murray S. Horwitz, Atty., Dept, of Justice (argued), Washington, D. C., for defendant-appellee.
Honorable J. Edward Lumbard, Senior United States Circuit Judge for the Second Circuit, sitting by designation.
OPINION
Before LUMBARD, MERRILL and WRIGHT, Circuit Judges.
MERRILL, Circuit Judge:
This is the third occasion on which we have considered the Kuney family partnership, the trusts created of partnership interests and the tax consequences of the manner in which a division of income has thus been accomplished.
Section 704(e)(1) of the Internal Revenue Code of 1954, 26 U.S.C. § 704(e)(1), dealing with family partnerships, recognizes that a partnership interest can, for .tax purposes, be created by gift.
“Recognition of interest created by purchase or gift. — A person shall be recognized as a partner for purposes of this subtitle if he owns a capital interest in a partnership in which capital is a material income-producing factor, whether or not such interest was derived by purchase or gift from any other person.”
However, 26 C.F.R. § 1.704-l(e)(l)(iii) states a familiar caveat. In part it provides:
“A transfer is not recognized if the transferor retains such incidents of ownership that the transferee has not acquired full and complete ownership of the partnership interest.”
With reference to family partnership interests held in trust, 26 C.F.R. § 1.704-l(e)(2)(vii) provides in part:
“A trustee may be recognized as a partner for income tax purposes under the principles relating to family partnerships generally as applied to the particular facts of the trust-partnership arrangement. A trustee who is unrelated to and independent of the grantor, and who participates as a partner and receives distribution of the income distributable to the trust, will ordinarily be recognized as the legal owner of the partnership interest which he holds in trust unless the grantor has retained control inconsistent with such ownership. However, if the grantor is the trustee, or if the trustee is amenable to the will of the grantor, the provisions of the trust instrument (particularly as to whether the trustee is subject to the responsibilities of a fiduciary), the provisions of the partnership agreement, and the conduct of the parties must all be taken into account in determining whether the trustee in a fiduciary capacity has become the real owner of the partnership interest. Where the grantor (or the person amenable to his will) is the trustee, the trust may be recognized as a partner only if the grantor (or such other person) in his participation in the affairs of the partnership actively represents and protects the interests of the beneficiaries in accordance with the obligations of a fiduciary and does not subordinate such interests to the interests of the grantor.”
In Kuney v. Frank, 308 F.2d 719 (9th Cir. 1962), when the family partnership was first before us, we held that under the facts as recited as to the taxable years in question there was retention by the trustors of such incidents of ownership of the substance of the transfer as to preclude recognition of the transfer for income tax purposes.
In Kuney v. United States, 448 F.2d 22 (9th Cir. 1971), the family partnership was last before us (on this occasion as to taxable years 1958 through 1963, and with only one trust involved — that with Kuney, Jr., as trustor, and Kuney, Sr., as trustee). We noted that the district court had not examined into the manner in which the trustee had acted with respect to the interests of the beneficiaries but instead had relied on the fact that the trust instrument remained unchanged, reasoning from that fact that the question of ownership remained unchanged and required the Kuney v. Frank result. We noted that what was remarkable about the trust instrument was not that a broad scope of powers was retained by the trustor, but that the powers granted to the trustee were extraordinarily broad. We noted that under these circumstances, if retention of incidents of ownership by the trustor is to be found, it is not through the terms of the trust instrument but must be through his influence over the trustee; that under the regulations familial relationship and amenability of the trustee to the wishes of the trustor present a potential of ownership retention but the question “whether the trustee in a fiduciary capacity has become the real owner of the partnership interest” is made to depend on the manner in which the trustee actually conducts himself with reference to the trust. In this respect we noted that “it is apparent that many of the practices of which we had been critical [in Kuney v. Frank] ceased during the taxable years here in question.” 488 F.2d at 24. We stated:
“The question, under the regulations * * * is ‘whether the trustee in a fiduciary capacity has become the real owner of the partnership interest.’ And this will depend on whether he ‘actively represents and protects the interests of the beneficiaries in accordance with the obligations of a fiduciary and does not subordinate such interests to the interests of the grantor.’ ”
(448 F.2d at 24). We remanded in order that consideration might be given to the manner in which the trustee had conducted himself with reference to the trusts.
Hearing on the remand followed, after which the district court, in a memorandum decision, recited that the United States had pointed to two practices of the Kuneys, Junior and Senior, that it contended were not in accordance with the obligations of a fiduciary and operated to subordinate the interests of the beneficiaries to those of the grantor. The district court agreed with the United States, rendering judgment in its favor, and this appeal was taken by the taxpayers.
The first of the two practices on which the United States relied related to the fact that the Kuneys had, as partners, drawn compensation fixed at $5,000 each and that by agreement with the partnership it was provided that the compensation should be taken, so far as possible, from partnership capital gains. The United States argues that this constituted a tax benefit to the trustors that otherwise would have been enjoyed by the trust partners.
However, the Kuneys as managing partners were required by regulation to pay themselves suitable compensation for their services in the management of the partnership affairs. 26 C.F.R. §§ 1.704 — l(e)(l)(i), 1.704 — l(e)(3)(i)(a). Had they failed to do so the Service could have added to their taxable income such amount as it felt was appropriate. The fact that capital gain income is involved does not alter this principle, nor can it change the general inquiry as to the trustees’ conduct. Capital gains, in the hands of the trustors, may well have been put to their maximum usefulness as tax benefits, and the tax recovered by the United States may have been reduced by this manner of making payment, but the question is whether the trusts (not the United States) suffered by the arrangement. We fail to see how the trusts could be said to have suffered unless the value of the benefit conferred was such as to constitute undue compensation.
There is nothing in the record to which we have been cited to establish that the extent of benefit conferred on the trustors or detriment suffered by the partnership as a result of this arrangement amounted to undue compensation. To the contrary, the salary payments made by the partnership to the Kuneys appear reasonable in light of the large amount of capital gain and rental income accruing to the partnership as a result of the Kuneys’ services. In fact, the $5,000 salary taken by each Kuney represents a substantial decrease from the $25,000 salary paid to each Kuney by the partnership in the years prior to the capital gain arrangement. Of course, the payment of $5,000 in capital gains affords a greater benefit to the trustors and a greater detriment to the trusts than the payment of a similar amount in ordinary income. But this fact alone cannot constitute compensation as undue. If capital gain payments were precluded, the trusts might well have had to pay the Kuneys larger salaries in order to afford them reasonable compensation at ordinary income tax rates.
We conclude that the trust cannot be said to have suffered by reason of the capital gain arrangement where the value of the benefits conferred has not been shown to constitute undue compensation.
The second of the two practices of which the United States complains has to do with the rental charged by the partnership for equipment owned by it and leased to a family corporation controlled by the Kuneys, Senior and Junior, in which corporation the trusts had no interest. The United States criticizes the fact that rental at one point was reduced, and also criticizes the fact that the rental rate was 100% of the depreciation deduction allowed the partnership plus interest on the adjusted basis at bank rates. The United States points out that in time this would result in the corporation paying almost nothing for an item of equipment which had been fully depreciated. (The United States concedes that since the partnership used accelerated depreciation schedules the rental rate would be very high in the first year of the life of any item.)
There is nothing in the record to which we have been referred to establish that the rental calculated in this fashion was unduly low or that the manner of computing it was, on the whole, disadvantageous to the partnership. There seems to be nothing inherently wrong in gearing rental rates to depreciation deductions, see Riss & Co., Inc., ¶ 64,190 P—H Memo TC (1964), especially where, as here, the lessee also undertakes to pay all ownership costs (including repairs, maintenance, insurance, and property taxes) and the lessor is able to reap large capital gains on the sale of the depreciated assets. Moreover, the fact that the rental had been reduced in 1959 does not inevitably lead to the conclusion that the rental was too low or that the trustees were subordinating the interests of the trusts to their own benefit. The reason for the reduction was that the 20% minority shareholders of the lessee corporation felt that the prior rental figure of 130% depreciation was too high. While the reduction in rental certainly resulted in less income to the partnership from the previous arrangement, the resulting rental rate was not, as we have seen, unduly low. Nor does the fact of a reduction inherently establish that the trustees were acting in their own, and not the trusts’ interests. Section 704(e) was not meant to tie the trustees to inflexible or rigid positions in the face of changing business needs, aijd the trustees could well independently conclude that in this situation a reduction of rental was in the best business interests of the partnership.
We conclude that the trusts cannot be said to have suffered by reason of the rental charged or the manner of calculating it.
Based on these practices cited by the United States, the district court concluded that the trustee had acted in derogation of the interests of the beneficiaries, subordinating their interests to those of the trustor, and concluded that the income received by the trust should be taxed to the trustor as his income.
In this we feel the court was in error.
Reversed.
. The partnership interests are, in essence, divided in fourths between Kuney, Sr.; Kuney, Jr.; trust for child of Kuney, Sr. (with Kuney, Jr., as trustee); trust for children of Kuney, Jr. (with Kuney, Sr., as trustee).
. Even where the trustor names himself as trustee and could quite rationally be regarded as in “control” of himself, this is not per se an undue retention of incidents of ownership.
Here, too, under the regulations the fact of retention of ownership will depend on how the trustor behaves himself as trustee. The regulations recognize that a trustor in such a situation may be able, in his capacity as trustee, to refrain from subordinating the interests of his beneficiary to his own interests as trustor.
. The United States cited a third practice of which it was critical as to which it now concedes that criticism was not justified.
. For example, the capital gains achieved solely through the Kuneys’ efforts in the years 1958-60 were respectively $36,557.88, $72,-740.00, and $45,054.47. The rental income, while fixed by contract and thus less subject to the Kuneys’ supervision, was also high: a total of $316,196.72 in 1959 and $245,591.82 in 1960.
. This decrease was substantially offset by the salary allotted each Kuney by the corporation in which the Kuneys held a controlling interest. However, the record shows that, at least for most of the years in question, the total amount of compensation taken by each Kuney (from both the partnership and the corporation) was less than the $25,000 salary paid to each under the original arrangement with the partnership.
. At the hearing on remand counsel for the United States appeared to concede that pegging rental to depreciation would result in a higher rental figure than otherwise might be expected.
Throughout these proceedings the United States has asserted the generalization that the Kuneys have sought to minimize the income of the partnership (and thus reduce their individual taxable income) and maximize the value of their corporate holdings. We are cited to nothing in the record to support this generalization. To the contrary, testimony of Kuney, Jr., given at trial, was to the effect that “By the end of 1963, the last year at issue in this case, the original trust investment of $200,000 had multiplied by three hundred and twenty-one per cent where the corporate investment of $500,000 had increased by forty-four per cent.”
. Section 1245 of the Internal Revenue Code, enacted to curb precisely this sort of practice, was not in effect until after December 31, 1962, and thus was inapplicable to most of the years in question.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_direct1
|
A
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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 position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. 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.
Roland ALEXANDER, Jr., et al., Plaintiffs-Appellants, v. YOUNGSTOWN BOARD OF EDUCATION; Its Individual Members; Superintendent of Youngstown City School District; Ohio State Board of Education; Superintendent of Public Instruction, et al., Defendants-Appellees.
No. 78-3619.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 19, 1980.
Decided April 9, 1982.
Rehearing and Rehearing En Banc Denied June 11,1982.
James L. Hardiman, Teresa Demchak (argued), Cleveland, Ohio, John L. Breckenridge, Floyd Haines, E. Winther McCroom, Youngstown, Ohio, Thomas I. Atkins, Gen. Counsel, NAACP Sp. Contribution Fund (argued), New York City,-for plaintiffs-appellants.
Harold Stein, Director of Law, Edwin Romero, Richard J. LaCivita (argued), Youngstown, Ohio, for Youngstown Bd. et al.
Eugene Green, Green, Schiavoni, Murphy. & Haines, Barry R. Laine (argued), Youngstown, Ohio, for State Bd. of Ed. and State Superintendent of Public Instruction.
Before BROWN, KENNEDY and MARTIN, Circuit Judges.
BOYCE F. MARTIN, Jr., Circuit Judge.
This is a school desegregation case involving the public schools of the city of Youngstown, Ohio. It was certified as a class action on behalf of all children attending those schools and their parents or guardians. The complaint alleges that the Youngstown Board of Education, its individual members and Superintendent (the “Youngstown defendants”), along with the Ohio State Board of Education, its individual members, and the Superintendent of Public Instruction of the State of Ohio (the “State defendants”), created, maintained, and were presently operating an illegally segregated system of public schools, thereby depriving the plaintiffs of their right to equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution. The segregation was allegedly accomplished by the use of various techniques, including the assignment of students to schools, the manipulation of attendance zones and feeder patterns, schoolsite selection, and the utilization of existing racially discriminatory patterns in public and private housing. The complaint sought equitable relief in the form of an injunction requiring the defendants to develop and implement a system-wide plan of desegregation. Trial of the case commenced on January 3, 1977 and continued for 25 days, during which 31 witnesses testified and more than 5,000 pages of testimony were transcribed. After the trial was completed but before the District Court handed down its decision, the United States Supreme Court rendered its opinion in Dayton Board of Education v. Brinkman (Dayton I), 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977). The District Court directed the parties to file additional briefs in light of this decision. On April 12,1978, the District Court issued an exhaustive Memorandum Opinion and Order, published at 454 F.Supp. 985 (N.D.Ohio 1977). In that opinion, it concluded that the defendants had not at any time referred to in the complaint or at the time of trial operated a dual or intentionally segregated school system. The court did find, however, that the Youngstown defendants had violated plaintiffs’ rights under the Equal Protection Clause by the disproportionate assignment of black teachers and administrators to predominantly black schools. The court expressly found that those impermissible assignment practices had not, alone or in combination with other practices, created a segregated or dual school system. The court further held that the plaintiffs failed to establish any liability on the part of the State defendants.
The District Court certified its decision for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and plaintiff’s Petition for Leave to Appeal was granted by this court.
The Youngstown City School District is substantially coterminous with the city of Youngstown. At the time of trial, it operated 41 schools to service a student population of approximately 20,400. The percentage of black students in the district rose steadily in the years preceding the trial. In 1952-53, the first year for which racial composition data is available, blacks comprised less than 20% of the student population; at the time of trial in 1977, the student population was 48.9% black. The district’s schools are characterized by a substantial degree of racial identifiability. The question in this case, as in most school desegregation cases, is whether that segregation is the result of a violation by the defendants of the plaintiffs’ constitutional rights. The District Court held that it was not, and we affirm.
The fact that Ohio law does not mandate segregated schooling does not preclude a finding of unlawful segregation. “[T]he Equal Protection Clause was aimed at all official actions, not just those of state legislatures.” Columbus Board of Education v. Penick, 443 U.S. 449, 457 n.5, 99 S.Ct. 2941, 2946 n.5, 61 L.Ed.2d 666 (1979). If a school system was intentionally segregated at the time of Brown I, [Board of Education of Topeka, Shawnee County, Kansas], 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the school officials are under a continuous constitutional obligation to disestablish the dual system as of the date of the Supreme Court’s decision in Brown II [Board of Education of Topeka, Shawnee County, Kansas], 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). Columbus Board of Education v. Penick, supra, at 458, 99 S.Ct. at 2946. This obligation imposes an “affirmative duty on school boards to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. County School Board, 391 U.S. 430, 437, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716 (1968). “Each instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment.” Penick, supra at 459, 99 S.Ct. at 2947.
On the other hand, the mere existence of unintegrated schools does not establish a constitutional violation; “[A] school district has no affirmative obligation to achieve a balance of the races in the schools when the existing imbalance is not attributable to school policies or practices and is the result of housing patterns and other forces over which the school administration had no control.” Davis v. School District of City of Pontiac, Inc., 443 F.2d 573, 575 (6th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971). As the Supreme Court wrote in Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976):
[0]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.
The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. That there are both predominantly black and predominantly white schools in a community is not alone violative of the Equal Protection Clause. The essential element of de jure segregation is “a current condition of segregation resulting from intentional state action.” Keyes v. School Dist. No. 1, 413 U.S. 189, 205 [93 S.Ct. 2686, 2696, 37 L.Ed.2d 548] (1973). “The differentiating factor between de jure segregation and so-called de facto segregation... is purpose or intent to segregate.” Id., at 208 [93 S.Ct. at 2697]. See also id., at 199, 211, 213 [93 S.Ct. at 2699.]
It is now well established that there are three prerequisites to a finding of de jure segregation: (1) school board action; (2) a segregative intent or purpose; and (3) a causal relationship between the official conduct and the segregation in the schools. See Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). Plaintiffs are required to bear the burden of establishing discriminatory intent in a meaningful portion of the district. As a practical matter, intent can only be proven circumstantially. This places upon the trial court the critical responsibility of deciding whether or not such intent has been established. Trial courts are not without guidance in this effort. Although Washington v. Davis, supra, makes it clear that official action will not be held unconstitutional solely because it results in a racially discriminatory impact, “Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes.” Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). Thus plaintiffs need only prove that racial discrimination has been a motivating factor in the decision'. Id. at 265-66, 97 S.Ct. at 563. In addition, while actions resulting in foreseeable and anticipated disparate impact do not necessarily establish a constitutional violation, such actions are relevant evidence to prove the forbidden purpose: “Adherence to a particular policy or practice, with full knowledge of the predictable effects of such adherence upon racial imbalance in a school system is one factor among many others which may be considered by a court in determining whether an inference of segregative intent should be drawn.” Columbus Board of Education v. Penick, 433 U.S. 449, 465, 99 S.Ct. 2941, 2950, 61 L.Ed.2d 666 (1979), quoting from Penick v. Columbus Board of Education, 429 F.Supp. 229, 255 (S.D.Ohio 1977).
It is thus the duty of the District Court to determine whether, on the facts of a particular case, an inference of segregative intent should be drawn. The impact of the challenged official conduct is an important starting point. Other evidentiary sources available to the fact-finder include the historical background of that conduct, the specific sequence of events leading up to it, and the administrative record, particularly where, there are contemporaneous statements by members of the decision-making body, minutes of its meetings, or reports. Arlington Heights, supra, at 267-68, 97 S.Ct. at 564-65.
The task of fact-finding in a case such as this is substantially more complex than in a typical lawsuit. See Dayton Board of Education v. Brinkman (Dayton I), 433 U.S. 406, 414, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977). It is an inherently difficult task to ascertain the motivations of multimembered public bodies. The question whether a racial imbalance in a school system resulted from purely neutral public actions or is instead the intended result of actions which appeared neutral on their face but were in fact invidiously discriminatory is not an easy one to resolve. It requires careful consideration by the District Court of a multitude of official actions, their effects, and the circumstance in which they were undertaken.
Appellants advance a number of arguments on appeal. They contend that the District Court failed to apply the correct legal principles to the facts in its decision of this case. With respect to the issue of segregative intent, they claim that the court erroneously required plaintiffs to demonstrate that racial animus or bad faith was the sole motivating factor behind a myriad of administrative decisions. Appellants further contend that the trial court failed to consider the legal relevance of the defendants’ pre-Brown conduct. They argue that the court was “duty-bound” to hold the defendants to an obligation, commencing in 1954 and continuing thereafter, to effectuate a transition to a racially nondiscriminatory school system. Appellants also claim that the District Court erred in failing to invoke the burden shifting principles announced in Keyes, and misallocated the burden of proof to appellants’ detriment. Finally, they argue that the District Court erroneously treated Youngstown’s six high school zones as separate and impenetrable subsystems in its examination of the evidence. We disagree with each of these contentions, and find that the District Court was sufficiently cognizant of the controlling cases and legal principles.
The District Court’s opinion evidences a full awareness of the principles governing the issue of segregative intent. Contrary to appellants’ contention, it did not require a demonstration that racial animus or bad faith was the sole motivating factor behind the allegedly segregative actions of the school officials. Indeed, it stated:
Only in exceptional circumstances is a decision of such authorities motivated by a single consideration or dominated by one particular purpose. Arlington Heights v. Metropolitan Housing Development, 429 U.S. 252, 265, 97 S.Ct. 555, 563 [50 L.Ed.2d 450] (1977). However, a racially discriminatory purpose need not be the primary motivating factor in a decision to establish the element of intent; it need only be a factor. Id. at 265-66, 97 S.Ct. at 563.
454 F.Supp. at 988. The court acknowledged its authority to infer discriminatory intent from acts or policies which had the natural, probable, or foreseeable result of increasing or perpetuating school segregation. It was also aware, however, that such an inference is permissible rather than mandatory. See Higgins v. Board of Education, 508 F.2d 779, 793 (6th Cir. 1974). This is obviously consistent with the Supreme Court’s decision in Columbus: “[Keyes, Washington v. Davis, and Arlington Heights] do not forbid ‘the foreseeable effects standard from being utilized as one of the several kinds of proofs from which an inference of segregative intent may properly be drawn.’ ” 443 U.S. at 464-65, 99 S.Ct. at 2949-50, quoting from Penick v. Columbus Board of Education, 429 F.Supp. 229, 255 (S.D.Ohio 1977), affirmed in part and vacated in part, 583 F.2d 787 (6th Cir. 1978), affirmed, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979) (emphasis added). Throughout its opinion, the District Court discusses school board actions and surrounding circumstances which support an inference of segregative intent. In every instance, however, the court declined to draw that inference, setting forth its reasons in its opinion. Nowhere in that opinion do we find evidence that the court failed to apply the correct legal rules governing the issue of intent.
We also disagree with appellants’ claim that the District Court failed to consider the legal relevance of the defendants’ pre-Brown conduct. The court was required'to hold the defendants to a continuing obligation to dismantle a segregated school system only if it found that an intentionally segregated school system had been established at the time of Brown I. Having specifically found that no such intentional segregation had been proved, the trial court was under no duty to impose on the defendants a constitutional obligation to establish a unitary system.
Nor. was the trial court obligated to invoke the burden-shifting principle set out in Keyes, supra. That principle is the allocation to the school board of the burden of proving either that its actions were “not taken in effectuation of a policy to create or maintain segregation..., or, if unsuccessful in that effort, were not factors in causing the existing condition of segregation in these schools.” 413 U.S. at 214, 93 S.Ct. at 2700. However, this burden can only be shifted when the court finds that school authorities have practiced purposeful ségregation in part of the school system. Id. at 208, 93 S.Ct. at 2697. See also Penick v. Columbus Board of Education, supra, 429 F.Supp. at 252. No such finding was made in this case. Thus, unless the trial court’s findings with regard to segregative intent are clearly erroneous, neither the Keyes burden-shifting principle nor the constitutional obligation to establish a unitary school system plays a part in this case.
We do observe that the District Court misstated the Keyes burden-shifting principle. That principle is properly invoked upon a finding of intentionally segregative school board actions; the District Court, however, stated that the burden of proof shifts to the defendants where the evidence supports such a finding. 454 F.Supp. at 989. Whether the court actually placed the burden on the defendants is not clear from its opinion. Neither is it significant to this apjjeal in light of our decision. If the court in fact shifted the burden, the error could only have operated in appellants’ favor.
With reference to the burden of proof, the District Court also cited this court’s opinion in Oliver v. Michigan Board of Education, 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). In that case, we held that a presumption of segregative, purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials’ action or inaction was an' increase or maintenance of segregation. According to Oliver, the presumption becomes proof unless defendants affirmatively establish that their conduct was a consistent and resolute application of racially neutral policies. Id. at 182. In other words, the presumption shifted the burden of proof to the defendant to demonstrate that its policies have been racially nondiscriminatory. The validity of this presumption was cast in doubt by the Supreme Court in Dayton II:
We have never held that as a general proposition the foreseeability of segregative consequences makes out a prima facie case of purposeful racial discrimination and shifts the burden of producing evidence to the defendants if they are to escape judgment; and even more clearly there is no warrant in our cases for holding that such foreseeability routinely shifts the burden of persuasion to the defendants. Of course, as we hold in Columbus today,... proof of foreseeable consequences is one type of quite relevant evidence of racially discriminatory purpose, and it may itself show a failure to fulfill the duty to eradicate the consequences of prior purposefully discriminatory conduct.
443 U.S. at 536, n.9, 99 S.Ct. at 2978, n.9. See also Columbus Board of Education v. Penick, 443 U.S. at 465, 99 S.Ct. at 2950. Again, however, any erroneous invocation of the Oliver presumption by the District Court would have aided appellants below by divesting them of their burden of proof. Such an error, if it in fact occurred, can therefore have no bearing on our decision.
Finally, we disagree with appellants’ contention that the District Court erroneously treated the six high school zones as discrete subsystems. Throughout its opinion, the District Court makes reference to a document, published in 1921, entitled “A Survey and Building Program for the Youngstown City Schools 1920-1940.” Authorized by the Board of Education, this study was designed to provide “a thorough-going survey on which the building program of the next twenty years might be based.” The survey, under the heading “Natural Division and School Zones”, makes the following statement:
Several strong natural features divide the city area into definite and separate school zones, each of which must attain to a complete system of schools for itself in order to conserve the best interests of all the people and the travel time and safety of the children. First of all, the Mahoning River divides the territory east and west into two large units which we call the North and South sides of the city. Then the North side is again divided by Crab Creek and its many railroad tracks into two distinct sections. The Northwest section we shall call School Zone No. 1, and the North-east No. 2. The South side is cut into four well defined parts by Mill Creek and its Park, by Pine Hollow, and the Southern Railroad and its ravine, thus creating four distinct sections. The East one will be Zone No. 3; the next, No. 4; the next, No. 5; and the Western one, No. 6. All of these secondary but marked features of division in the territory connect with the Mahoning River as the primary dividing line and thus set forth six clear and clear-cut zones of area and population to be treated as such in a constructive program of schools for the future. This survey will so recognize these natural divisions of the city territory and provide a complete system of schools for each of them.
As the District Court pointed out, the school system did not develop precisely according to the survey. Although six high school zones were in fact established, only three were situated below the M-ahoning River. One reason for this was the city’s unanticipated failure to expand on its south-east side outside the 1921 city limits. The other deviation from the survey was the development of a third zone north of the river. Nevertheless, there is substantial support for the District Court’s observation that the school zones in Youngstown were created essentially in conformity with the survey.
Appellants contend that' the District Court relied on the survey to treat Youngstown’s high school zones as separate and impenetrable subsystems of the school district. They argue that the size of the districts and the numerous instances of student assignments across high school attendance zones preclude such treatment. Moreover, appellants assert that the Supreme Court’s opinion in. Keyes prohibits an analysis of the system in compartmentalized units even if these units have a rational basis in fact.
Our review of the District Court’s opinion convinces us that it did not treat the six high school zones as impregnable subsystems. It is true that the court’s opinion addresses the factual allegations within the framework of the six high school zones and that it examines the challenged actions and failures to act on an individual basis. However, the enormous complexity of the factual presentations in these cases requires a trial court to choose an orderly framework for its discussion of the facts. We will not assume from the format chosen here that the District Court, as appellants contend, “failed to see the forest for the trees.” The opinion thoroughly analyzes the inter-zonal and systemwide effects at all educational levels of various official actions.
We find no error in the District Court’s resort to the 1921 survey as evidence to support its findings of fact. As we pointed out above, a showing of disparate impact provides no shortcut to the ultimate fact of discriminatory intent. “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct.evidence of intent as may be available.” Arlington Heights, supra, 429 U.S. at 266, 97 S.Ct. at 563. The 1921 survey, along with similar studies and internal memoranda referred to by the District Court, provides the sort of historical background to the challenged official conduct which, under Arlington Heights, is relevant to the issue of discriminatory intent.
We conclude that the District Court’s opinion reveals an adequate grasp of the legal principles applicable to this case. Any misapprehension or misapplication of those principles necessarily inured to the benefit of appellants. The central issue in this appeal, therefore, is whether the District Court’s factual findings must be set aside. Before examining the merits of that contention, we deem it appropriate to articulate what we believe to be the appropriate standard of review.
In civil cases, Rule 52(a) of the Federal Rules of Civil Procedure provides that an appellate court must not set aside findings of fact of the District Court unless those findings are clearly erroneous. Findings of fact are “clearly erroneous” only when the reviewing court “is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1958); Johnson v. United States, 600 F.2d 1218, 1222 (6th Cir. 1979).
Appellants argue that this standard is inapplicable to the present case for two reasons. First, they claim that a reading of the District Court’s opinion reveals that the findings of the court were primarily based on documentary, rather than testimonial, evidence. Appellants claim that because we have before us the same “paper” evidence upon which the trial court based its decision, the clearly erroneous rule plays only a limited role in our review of those findings. This is not the rule in this circuit. The clearly erroneous standard applies notwithstanding the fact that the appellate record may consist entirely of documentary evidence.. United States Steel Corporation v. Fuhrman, 407 F.2d 1143 (6th Cir. 1969), cert. denied, 398 U.S. 958, 90 S.Ct. 2162, 26 L.Ed.2d 542; Gartrell v. United States, 619 F.2d 1150 (6th Cir. 1980). “The ‘clearly erroneous’ test does not derive solely from the trial judge’s superior opportunity to assess the credibility of witnesses; it also reflects and preserves the proper relationship between trial courts and courts of appeal.” United States v. Jabara, 644 F.2d 574, 577 (6th Cir. 1981).
The second reason cited by appellants for the proposition that the clearly erroneous rule plays only a limited role in this appeal is that the contested issues involve mixed questions of law and fact. As we observed above, the District Court’s opinion contains no errors of law upon which a reversal can be based. For that reason, the critical question in this case is the propriety of the District Court’s determination that the defendants did not act with segregative intent. That finding is the crux of the decision below, and the standard to be employed in reviewing it is of paramount importance. This court has always treated district courts’ resolutions of this question as findings of fact, to be set aside on appeal only if clearly erroneous. See, e.g., Reed v. Rhodes, 607 F.2d 714, 717, 732 (6th Cir. 1979), cert. denied, 445 U.S. 935, 100 S.Ct. 1329, 63 L.Ed.2d 770 (1980); Pehick v. Columbus Board of Education, 583 F.2d 787, 789, 798 (6th Cir. 1978), aff’d, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979); Brinkman v. Gilligan, 583 F.2d 243 (6th Cir. 1978), aff’d, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979). Moreover, it is clear from the decisions of the Supreme Court that such findings are subject on appeal to the clearly erroneous rule. Referring to our determination in the Dayton ease that the district court’s finding of no intentional segregation was clearly erroneous, the Supreme Court stated: [T]here is great value in'appellate courts showing deference to the fact-finding of local trial judges.... The clearly erroneous standard serves that purpose well. But under that standard, the role and duty of the Court of Appeals are clear: it must determine whether the trial court’s findings are clearly erroneous, sustain them if they are not, but set them aside if they are. The Court of Appeals performed its unavoidable duty in this case and concluded that the District Court had erred.” Dayton Board of Education v. Brinkman (Dayton II), supra, 443 U.S. 526, 534 n.8, 99 S.Ct. 2971, 2977 n.8, 61 L.Ed.2d 720 (1979). We think it clear, therefore, that the District Court’s finding in this case of no intentional segregation must be accorded the same deference usually given to findings of fact in civil cases. See Columbus, supra, at 468, 99 S.Ct. at 2952 (Burger, C. J., concurring). Indeed, there is a persuasive argument in support of even greater deference to such findings in school desegregation cases. Justice Stewart stated that argument in his separate opinion in the Columbus and Dayton II cases:
It seems to me that the Court of Appeals in both of these cases ignored the crucial role of the federal district courts in school desegregation litigation — a role repeatedly emphasized by this Court throughout the course of school desegregation controversies, from [Brown II to Dayton /]. The development of the law concerning school segregation has not reduced the need for sound factfinding by the district courts, nor lessened the appropriateness of deference to their findings of fact. To the contrary, the elimination of the more conspicuous forms of governmentally ordained racial segregation over the last 25 years counsels undiminished deference to the factual adjudications of the federal trial judges in cases such as these, uniquely situated as those judges are to appraise the societal forces at work in the communities where they sit.
Whether actions that produce racial separation are intentional within the meaning of [Keyes, Washington v. Davis, and Arlington Heights] is an issue that can present very difficult and subtle factual questions. Similarly intricate may be factual inquiries into the breadth of any constitutional violation, and hence of any permissible remedy. See Millikin v. Bradley, 418 U.S. 717 [94 S.Ct. 3112, 41 L.Ed.2d 1069] (Millikin I); Dayton I, supra. Those tasks are difficult enough for a trial judge. The coldness and impersonality of a printed record, containing the only evidence available to an appellate court in any case, can hardly make the answers any clearer. I doubt neither the diligence nor the perseverance of the judges of the courts of appeals, or of my Brethren, but I suspect that it is impossible for a reviewing court factually to know a case from a 6,600-page printed record as wejl as the trial judges knew it. In assessing the facts in lawsuits like these, therefore, I think appellate courts should accept even more readily than in most cases the factual findings of the courts of first instance.
443 U.S. at 469-71, 99 S.Ct. at 2983 (footnotes omitted). With these principles in mind, we turn to an examination of the District Court’s finding that the defendants did not intentionally act to segregate Youngstown’s public schools.
We shall not endeavor in this opinion to discuss all the challenged boundary changes, feeder patterns, schoolsite selections, and other actions and failures to act addressed by the trial court. With respect to many of those actions, appellants’ brief contains only a conclusory statement that the action was intentionally segregative, without discussing why the District Court’s findings to the contrary are clearly erroneous. Other findings by the District Court, although challenged in appellants’ brief, are sufficiently supported by facts cited in the District Court’s opinion. Upon careful review of the record, briefs, and oral arguments presented to this court, we think further discussion of many of these findings would be unnecessarily duplicative. Indeed, we feel that the trial court’s opinion represents an admirable analysis of the prodigious body of facts presented by the parties. The opinion articulates adequate bases for all of its factual and legal conclusions. Nevertheless, we deem it appropriate to address specifically some of the challenged acts and series of acts undertaken by the school officials. These actions are among those which provide the strongest support for the inference that Youngstown’s school system was intentionally segregated.
Appellants contend that it was deliberately segregative to open Covington Elementary School in 1940 to serve an area which was predominantly black. The District Court found that the facility actually replaced the Covington Elementary School structure in existence since at least 1900. It further noted that the 1921 Survey described the structure as perhaps the worst school building in Youngstown and recommended its replacement because of its ideal location. 454 F.Supp. at 993. In our view, these findings obviously represent a determination by the court that the construction and siting of the Covington school in 1940 was not the result of racial discrimination. Because they are adequately supported by the record, we do not find them to be clearly erroneous.
Appellants assert that Youngstown officials engaged in an effort to separate the western part of the district, a predominantly white residential area, from the area where most of Youngstown’s blacks lived. As part of this effort, a series of actions was allegedly taken to erect a barrier between the South and Chaney High School areas. In 1940, Grant Junior High School was converted into an elementary school, and Hillman Junior High School was opened. Grant had been a feeder school for Chaney High School, but after the conversion it was reassigned to the South High School zone where it became a feeder school for Hillman Junior High. Hillman’s attendance area included the majority of the black population living within the South High School area, and the majority of the black students within Hillman’s area resided within the attendance area for Grant elementary school. To accommodate the inclusion of the new Grant elementary school within its attendance area, South High’s northern boundary was expanded to include Grant’s area. According to the 1940 census data,' South’s new attendance area now contained virtually all of the black population south of the Mahoning River.
The District Court found that these actions were not motivated by racial considerations. The conversion of Grant to an elementary school and the opening of a junior high school at the Hillman site had been specifically recommended by the 1921 Building Survey, which the court found was concluded prior to the development of the racial residential pattern in that area of Youngstown. The court also noted that, based on racial composition data for the 1952-53 school year, Grant and Hillman in 1940 were probably at or only slightly above the system-wide average in their black student populations. According to the District Court, the actual intent of the school officials was to provide modern school plants within each of the six separate population zones of Youngstown. The new South High zone conformed to the natural boundaries of the Mahoning River and Mill Creek Park. The court concluded that the preponderance of the evidence does not demonstrate any segregative intent on the part of the officials in undertaking these changes, but rather supports the finding that they were made in response to the population growth south of the Mahoning River which was recognized as early as the 1921 Survey. 454 F.Supp. at 1059. Again, the District Court’s findings are supported by facts in the record, and cannot, in our view, be set aside as clearly erroneous.
One form of “acts and omissions” which the District Court found demonstrative of a “reasonable possibility of establishing a pattern of intentionally segregative actions” was the series of assignments of students from the old Harrison Elementary School. Prior to 1949, the Harrison school zone included areas on both the north and south sides of Thorn Hill Avenue. The students residing north of Thorn Hill road were predominantly, if not exclusively, white. Those living south of Thorn Hill were racially mixed and from predominantly low-income homes. In 1949 Harrison was closed. The black and lower income students south of Thorn Hill Avenue were assigned to the adjacent Madison Elementary School, which in 1952 was 21.0% black. The students north of Thorn Hill Road were temporarily assigned to discontiguous Richey Elementary School. In 1951 those students were reassigned to Elm.
In 1957 a new Harrison Elementary School was opened. It was located south of Thorn Hill Road, and was not large enough to accommodate all the students in the old Harrison attendance area. Among the reasons for this was the development in the preceding years of two housing projects in the area south of Thorn Hill Road. Students residing north of Thorn Hill Road continued to be assigned to Elm after the new Harrison school was built.
In 1965 Elm Elementary was closed. The white students from the area north of Thorn Hill were reassigned to Harding, which at that time had a black population of less than 10%. Finally, in 1973, these students were reassigned to McKinley, and McKinley’s attendance area was altered to include the area north of Thorn Hill Avenue. McKinley also had a relatively low percentage of black students at the time.
Appellants claim that this series of actions demonstrates a determined effort on the part of the school officials to separate the white and black students in the Harrison attendance area. They claim that the new Harrison school was deliberately “underbuilt” so the white students in the area would never have to attend it.
The District Court, however, viewing
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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sc_decisiondirection
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the 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.
PALAZZOLO v. RHODE ISLAND et al.
No. 99-2047.
Argued February 26, 2001
Decided June 28, 2001
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connoe, Scalia, and Thomas, JJ., joined, and in which Stevens, J., joined as to Part II-A. O’Connor, J., post, p. 632, and Scalia, J., post, p. 636, filed concurring opinions. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 637. Ginsburg, J., filed a dissenting opinion, in which Souter and Breyer, JJ., joined, post, p. 645. Breyer, J., filed a dissenting opinion, post, p. 654.
James S. Burling argued the cause for petitioner. With him on the briefs was Eric Grant.
Sheldon Whitekouse, Attorney General of Rhode Island, argued the cause for respondents. With him on the brief were Michael Rubin, Assistant Attorney General, Brian A. Goldman and Richard J. Lazarus.
Malcolm L. Stewart argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were former Solicitor General Waxman, Assistant Attorney General Schiffer, Deputy Solicitor General Kneed-ler, William B. Lazarus, and R. Justin Smith
Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Timothy S. Bishop, Jeffrey W. Sarles, Steffen N. Johnson, John J. Rademacher, and John J. Kupa; for the California Coastal Property Owners Association by Carter G. Phillips, Mark E. Haddad, and Catherine Valerio Barrad; for Defenders of Property Rights by Nancie G. Marzulla; for the Institute for Justice by William H. Mellar, Clint Bolick, Scott G. Bullock, and Richard A. Epstein; for the Washington Legal Foundation et al. by Daniel J. Popeo and R. Shawn Gunnarson; and for W. Frederick Williams III et al. by Michael E. Malamut.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Richard M. Frank, Chief Assistant Attorney General, J. Matthew Rodriquez, Senior Assistant Attorney General, and Joseph Barbieri, Deputy Attorney General, Robert R. Rigsby, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii, Andrew Ketterer of Maine, Thomas F. Reilly of Massachusetts, Mike McGrath of Montana, Frankie Sue Del Papa of Nevada, Phillip T. McLaughlin of New Hampshire, John J. Farmer, Jr., of New Jersey, Eliot Spitzer of New York, Betty D. Montgomery of Ohio, W. A. Drew Edmond-son of Oklahoma, Mark W. Barnett of South Dakota, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, and Christine O. Gre-goire of Washington; for the County of Santa Barbara by Stephen Shane Stark and Alan L. Seltzer; for the American Planning Association et al. by Timothy J. Dowling and James E. Ryan; for the Board of County Commissioners of the County of La Plata, Colorado, by Michael A. Goldman and Jeffery P. Robbins; for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley; for the National Wildlife Federation et al. by Vicki L. Been and Glenn P. Sugameli; for Save the Bay-People for Narragansett Bay by Deming E. Sherman and Kendra Beaver; and for Daniel W. Bromley et al. by John D. Echeverría.
Briefs of amici curiae were filed for the National Association of Home Builders by Christopher G. Senior; and for Dr. John M. Teal et al. by Patrick A. Parenteau and Tim Eichenberg.
Justice Kennedy
delivered the opinion of the Court.
Petitioner Anthony Palazzolo owns a waterfront parcel of land in the town of Westerly, Rhode Island. Almost all of the property is designated as coastal wetlands under Rhode Island law. After petitioner’s development proposals were rejected by respondent Rhode Island Coastal Resources Management Council (Council), he sued in state court, asserting the Council’s application of its wetlands regulations took the property without compensation in violation of the Takings Clause of the Fifth Amendment, binding upon the State through the Due Process Clause of the Fourteenth Amendment. Petitioner sought review in this Court, contending the Supreme Court of Rhode Island erred in rejecting his takings claim. We granted certiorari. 531 U. S. 923 (2000).
I
The town of Westerly is on an edge of the Rhode Island coastline. The town’s western border is the Pawcatuck River, which at that point is the boundary between Rhode Island and Connecticut. Situated on land purchased from the Narragansett Indian Tribe, the town was incorporated in 1669 and had a precarious, though colorful, early history. Both Connecticut and Massachusetts contested the boundaries — and indeed the validity — of Rhode Island’s royal charter; and Westerly’s proximity to Connecticut invited encroachments during these jurisdictional squabbles. See M. Best, The Town that Saved a State — Westerly 60-83 (1943); see also W. McLoughlin, Rhode Island: A Bicentennial History 39-57 (1978). When the borders of the Rhode Island Colony were settled by compact in 1728, the town’s development was more orderly, and with some historical distinction. For instance, Watch Hill Point, the peninsula at the southwestern tip of the town, was of strategic importance in the Revolutionary War and the War of 1812. See Best, supra, at 190; F. Denison, Westerly and its Witnesses 118-119 (1878).
In later times Westerly’s coastal location had a new significance: It became a popular vacation and seaside destination. One of the town’s historians gave this happy account:
“After the Civil War the rapid growth of manufacture and expansion of trade had created a spending class on pleasure bent, and Westerly had superior attractions to offer, surf bathing on ocean beaches, quieter bathing in salt and fresh water ponds, fishing, annual sail and later motor boat races. The broad beaches of clean white sand dip gently toward the sea; there are no odorous marshes at low tide, no railroad belches smoke, and the climate is unrivalled on the coast, that of Newport only excepted. In the phenomenal'heat wave of 1881 ocean resorts from northern New England to southern New Jersey sweltered as the thermometer climbed to 95 and 104 degrees, while Watch Hill enjoyed a comfortable 80. When Providence to the north runs a temperature of 90, the mercury in this favored spot remains at 77.” Best, supra, at 192.
Westerly today has about 20,000 year-round residents, and thousands of summer visitors come to enjoy its beaches and coastal advantages.
One of the more popular attractions is Misquamicut State Beach, a lengthy expanse of coastline facing Block Island Sound and beyond to the Atlantic Ocean. The primary point of access to the beach is Atlantic Avenue, a well-traveled 3-mile stretch of road running along the coastline within the town’s limits. At its western end, Atlantic Avenue is something of a commercial strip, with restaurants, hotels, arcades, and other typical seashore businesses. The pattern of development becomes more residential as the road winds eastward onto a narrow spine of land bordered to the south by the beach and the ocean, and to the north by Winnapaug Pond, an intertidal inlet often used by residents for boating, fishing, and shellfishing.
In 1959 petitioner, a lifelong Westerly resident, decided to invest in three undeveloped, adjoining parcels along this eastern stretch of Atlantic Avenue. To the north, the property faces, and borders upon, Winnapaug Pond; the south of the property faces Atlantic Avenue and the beachfront homes abutting it on the other side, and beyond that the dunes and the beach. To purchase and hold the property, petitioner and associates formed Shore Gardens, Inc. (SGI). After SGI purchased the property petitioner bought out his associates and became the sole shareholder. In the first decade of SGI’s ownership of the property the corporation submitted a plat to the town subdividing the property into 80 lots; and it engaged in various transactions that left it with 74 lots, which together encompassed about 20 acres. During the same period SGI also made initial attempts to develop the property and submitted intermittent applications to state agencies to fill substantial portions of the parcel. Most of the property was then, as it is now, salt marsh subject to tidal flooding. The wet ground and permeable soil would require considerable fill — as much as six feet in some places — before significant structures could be built. SGPs proposal, submitted in 1962 to the Rhode Island Division of Harbors and Rivers (DHR), sought to dredge from Winna-paug Pond and fill the entire property. The application was denied for lack of essential information. A second, similar proposal followed a year later. A third application, submitted in 1966 while the second application was pending, proposed more limited filling of the land for use as a private beach club. These latter two applications were referred to the Rhode Island Department of Natural Resources, which indicated initial assent. The agency later withdrew approval, however, citing adverse environmental impacts. SGI did not contest the ruling.
No further attempts to develop the property were made for over a decade. Two intervening events, however, become important to the issues presented. First, in 1971, Rhode Island enacted legislation creating the Council, an agency charged with the duty of protecting the State’s coastal properties. 1971 R. I. Pub. Laws, ch. 279, § 1 et seq. Regulations promulgated by the Council designated salt marshes like those on SGPs property as protected “coastal wetlands,” Rhode Island Coastal Resources Management Program (CRMP) §210.3 (as amended, June 28,1983) (lodged with the Clerk of this Court), on which development is limited to a great extent. Second, in 1978, SGPs corporate charter was revoked for failure to pay corporate income taxes; and title to the property passed, by operation of state law, to petitioner as the corporation’s sole shareholder.
In 1983, petitioner, now the owner, renewed the efforts to develop the property. An application to the Council, resembling the 1962 submission, requested permission to construct a wooden bulkhead along the shore of Winnapaug Pond and to fill the entire marshland area. The Council rejected the application, noting it was “vague and inadequate for a project of this size and nature.” App. 16. The agency also found that “the proposed activities will have significant impacts upon the waters and wetlands of Winnapaug Pond,” and concluded that “the proposed alteration... will conflict with the Coastal Resources Management Plan presently in effect.” Id., at 17. Petitioner did not appeal the agency’s determination.
Petitioner went back to the drawing board, this time hiring counsel and preparing a more specific and limited proposal for use of the property. The new application, submitted to the Council in 1985, echoed the 1966 request to build a private beach club. The details do not tend to inspire the reader with an idyllic coastal image, for the proposal was to fill 11 acres of the property with gravel to accommodate “50 cars with boat trailers^ a dumpster, port-a-johns, picnic tables, barbecue pits of concrete, and other trash receptacles.” Id., at 25.
The application fared no better with the Council than previous ones. Under the agency’s regulations, a landowner wishing to fill salt marsh on Winnapaug Pond needed a “special exception” from the Council. CRMP § 180. In a short opinion the Council said the beach club proposal conflicted with the regulatory standard for a special exception. See App. 27. To secure a special exception the proposed activity must serve “a compelling public purpose which provides benefits to the public as a whole as opposed to individual or private interests.” CRMP § 130A(l). This time petitioner appealed the decision to the Rhode Island courts, challenging the Council’s conclusion as contrary to principles of state administrative law. The Council’s decision was affirmed. See App. 31-42.
Petitioner filed an inverse condemnation action in Rhode Island Superior Court, asserting that the State’s wetlands regulations, as applied by the Council to his parcel, had taken the property without compensation in violation of the Fifth and Fourteenth Amendments. See id., at 45. The suit alleged the Council’s action deprived him of “economically, beneficial use” of his property, ibid., resulting in a total taking requiring compensation under Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992). He sought damages in the amount of $3,150,000, a figure derived from an appraiser’s estimate as to the value of a 74-lot residential subdivision. The State countered with a host of defenses. After a bench trial, a justice of the Superior Court ruled against petitioner, accepting some of the State’s theories. App. to Pet. for Cert. B-l to B-13.
The Rhode Island Supreme Court affirmed. 746 A. 2d 707 (2000). Like the Superior Court, the State Supreme Court recited multiple grounds for rejecting petitioner’s suit. The court held, first, that petitioner’s takings claim was not ripe, id., at 712-715; second, that petitioner had no right to challenge regulations predating 1978, when he succeeded to legal ownership of the property from SGI, id., at 716; and third, that the claim of deprivation of all economically beneficial use was contradicted by undisputed evidence that he had $200,000 in development value remaining on an upland parcel of the property, id., at 715. In addition to holding petitioner could not assert a takings claim based on the denial of all economic use, the court concluded he could not recover under the more general test of Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978). On this claim, too, the date of acquisition of the parcel was found determinative, and the court held he could have had “no reasonable investment-backed expectations that were affected by this regulation” because it predated his ownership, 746 A. 2d, at 717; see also Penn Central, supra, at 124.
We disagree with the Supreme Court of Rhode Island as to the first two of these conclusions; and,, we hold, the court was correct to conclude that the owner is not deprived of all economic use of his property because the value of upland portions is substantial. We remand for further consideration of the claim under the principles set forth in Penn Central.
II
The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), prohibits the government from taking private property for public use without just compensation. The clearest sort of taking occurs when the government encroaches upon or occupies private land for its own proposed use. Our cases establish that even a minimal “permanent physical occupation of real property” requires compensation under the Clause. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 427 (1982). In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), the Court recognized that there will be instances when government actions do not encroach upon or occupy the property yet still affect and limit its use to such an extent that a taking occurs. In Justice Holmes’ well-known, if less than self-defining, formulation, “while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking.” Id., at 415.
Since Mahon, we have given some, but not too specific, guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking. First, we have observed, with certain qualifications, see infra, at 629-630, that a regulation which “denies all economically beneficial or productive use of land” will require compensation under the Takings Clause. Lucas, 505 U. S., at 1015; see also id., at 1035 (Kennedy, J., concurring); Agins v. City of Tiburon, 447 U. S. 255, 261 (1980). Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. Penn Central, supra, at 124. These inquiries are informed by the purpose of the Takings Clause, which is to prevent the government from “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960).
Petitioner seeks compensation under these principles. At the outset, however, we face the two threshold considerations invoked by the state court to bar the claim: ripeness, and acquisition which postdates the regulation.
A
In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), the Court explained the requirement that a takings claim must be ripe. The Court held that a takings claim challenging the application of land-use regulations is not ripe unless “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Id., at 186. A final decision by the responsible state agency informs the constitutional determination whether a regulation has deprived a landowner of “all economically beneficial use” of the property, see Lucas, supra, at 1015, or defeated the reasonable investment-backed expectations of the landowner to the extent that a taking has occurred, see Penn Central, supra, at 124. These matters cannot be resolved, in definitive terms until a court knows “the extent of permitted development” on the land in question. MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340, 351 (1986). Drawing on these principles, the Rhode Island Supreme Court held that petitioner had not taken the necessary steps to ripen his takings claim.
The central question in resolving the ripeness issue, under Williamson County and other relevant decisions, is whether petitioner obtained a final decision from the Council determining the permitted use for the land. As we have noted, SGI’s early applications to fill had been granted at one point, though that assent was later revoked. Petitioner then submitted two proposals: the 1988 proposal to fill the entire parcel, and the 1985 proposal to fill 11 of the property’s 18 wetland acres for construction of the beach club. The court reasoned that, notwithstanding the Council’s denials of the applications, doubt remained as to the extent of development the Council would allow on petitioner’s parcel. We cannot agree.
The court based its holding in part upon petitioner’s failure to explore “any other use for the property that would involve filling substantially less wetlands.” 746 A. 2d, at 714. It relied upon this Court’s observations that the final decision requirement is not satisfied when a developer submits, and a land-use authority denies, a grandiose development proposal, leaving open the possibility that lesser uses of the property might be permitted. See MacDonald, supra, at 353, n. 9. The suggestion is that while the Council rejected petitioner’s effort to fill all of the wetlands, and then rejected his proposal to fill 11 of the wetland acres, perhaps an application to fill (for instance) 5 acres would have been approved. Thus, the reasoning goes, we cannot know for sure the extent of permitted development on petitioner’s wetlands.
This is belied by the unequivocal nature of the wetland regulations at issue and by the Council’s application of the regulations to the subject property. Winnapaug Pond is classified under the CRMP as a Type 2 body of water. See CRMP § 200.2. A landowner, as a general rule, is prohibited from filling or building residential structures on wetlands adjacent to Type 2 waters, see id., Table 1, p. 22, and § 210.3(C)(4), but may seek a special exception from the Council to engage in a prohibited use, see id., § 130. The Council is permitted to allow the exception, however, only where a “compelling public purpose” is served. Id., § 130A(2). The proposal to fill the entire property was not accepted under Council regulations and did not qualify for the special exception. The Council determined the use proposed in the second application (the beach club) did not satisfy the “compelling public purpose” standard. There is no indication the Council would have accepted the application had petitioner’s proposed beach club occupied a smaller surface area. To the contrary, it ruled that the proposed activity was not a “compelling public purpose.” App. 27; cf. id., at 17 (1983 application to fill wetlands proposed an “activity” conflicting with the CEMP).
Williamson County’s final decision requirement “responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer.” Suitum v. Tahoe Regional Planning Agency, 520 U. S. 725, 738 (1997). While a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened. The case is quite unlike those upon which respondents place principal reliance, which arose when an owner challenged a land-use authority’s denial of a substantial project, leaving doubt whether a more modest submission or an application for a variance would be accepted. See MacDonald, supra, at 342 (denial of 159-home residential subdivision); Williamson County, supra, at 182 (476-unit subdivision); cf. Agins v. City of Tiburon, 447 U. S. 255 (1980) (case not ripe because no plan to develop was submitted).
These cases stand for the important principle that a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established. See Suitum, supra, at 736, and n. 10 (noting difficulty of demonstrating that “mere enactment” of regulations restricting land use effects a taking). Government authorities, of course, may not burden property by imposition of repetitive or unfair land-use procedures in order to avoid a final decision. Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U. S. 687, 698 (1999).
With respect to the wetlands on petitioner’s property, the Council’s decisions make plain that the agency interpreted its regulations to bar petitioner from engaging in any filling or development activity on the wetlands, a fact reinforced by the Attorney General’s forthright responses to our questioning during oral argument in this case. See Tr. of Oral Arg. 26, 31. The rulings of the Council interpreting the regulations at issue, and the briefs, arguments, and candid statements by counsel for both sides, leave no doubt on this point: On the wetlands there can be no fill for any ordinary land use. There can be no fill for its own sake; no fill for a beach club, either rustic or upscale; no fill for a subdivision; no fill for any likely or foreseeable use. And with no fill there can be no structures and no development on the wetlands. Further permit applications were not necessary to establish this point.
As noted above, however, not all of petitioner’s parcel constitutes protected wetlands. The trial court accepted uncontested testimony that an upland site located at the eastern end of the property would have an estimated value of $200,000 if developed. App. to Pet. for Cert. B-5. While Council approval is required to develop upland property which lies within 200 feet of protected waters, see CRMP § 100.1(A), the strict “compelling public purpose” test does not govern proposed land uses on property in this classification, see id., § 110, Table 1A, § 120. Council officials testified at trial, moreover, that they would have allowed petitioner to build a residence on the upland parcel. App. to Pet. for Cert. B-5. The State Supreme Court found petitioner’s claim unripe for the further reason that he “has not sought permission for any... use of the property that would involve... development only of the upland portion of the parcel.” 746 A. 2d, at 714.
In assessing the significance of petitioner’s failure to submit applications to develop the upland area it is important to bear in mind the purpose that the final decision requirement serves. Our ripeness jurisprudence imposes obligations on landowners because “[a] court cannot determine whether a regulation goes ‘too far’ unless it knows how far the regulation goes.” MacDonald, All U. S., at 348. Ripeness doctrine does not require a landowner to submit applications for their own sake. Petitioner is required to explore development opportunities on his upland parcel only if there is uncertainty as to the land’s permitted use.
The State asserts the value of the uplands is in doubt. It relies in part on a comment in the opinion of the Rhode Island Supreme Court that “it would be possible to build at least one single-family home on the upland portion of the parcel.” 746 A. 2d, at 714. It argues that the qualification “at least” indicates that additional development beyond the single dwelling was possible. The attempt to interject ambiguity as to the value or use of the uplands, however, comes too late in the day for purposes of litigation before this Court. It was stated in the petition for certiorari that the uplands on petitioner’s property had an estimated worth of $200,000. See Pet. for Cert. 21. The figure not only was uncontested but also was cited as fact in the State’s brief in opposition. See Brief in Opposition 4, 19. In this circumstance ripeness cannot be contested by saying that the value of the nonwetland parcels is unknown. See Lucas, 505 U. S., at 1020, and n. 9.
The State’s prior willingness to accept the $200,000 figure, furthermore, is well founded. The only reference to upland property in the trial court’s opinion is to a single parcel worth an estimated $200,000. See App. to Pet. for Cert. B-5. There was, it must be acknowledged, testimony at trial suggesting the existence of an additional upland parcel elsewhere on the property. See Tr. 190-191, 199-120 (testimony of Dr. Grover Fugate, Council Executive Director); see also id., at 610 (testimony of Steven Clarke). The testimony indicated, however, that the potential, second upland parcel was on an “island” which required construction of a road across wetlands, id., at 610, 623-624 (testimony of Mr. Clarke) — and, as discussed above, the filling of wetlands for such a purpose would not justify a special exception under Council regulations. See supra, at 619-621; see also Brief for Respondents 10 (“Residential construction is not the basis of such a ‘special exception’”). Perhaps for this reason, the State did not maintain in the trial court that additional uplands could have been developed. To the contrary, its post-trial memorandum identified only the single parcel that petitioner concedes retains a development value of $200,000. See State’s Post-Trial Memorandum in No. 88-0297 (Super. Ct. R. I.), pp. 25, 81. The trial court accepted the figure. So there is no genuine ambiguity in the record as to the extent of permitted development on petitioner’s property, either on the wetlands or the uplands.
Nonetheless, there is some suggestion that the use permitted on the uplands is not known, because the State accepted the $200,000 value for the upland parcel on the premise that only a Lucas claim was raised in the pleadings in the state trial court. See Brief for Respondents 29-30. Since a. Penn Central argument was not pressed at trial, it is argued, the State had no reason to assert with vigor that more than a single-family residence might be placed on the uplands. We disagree; the State was aware of the applicability of Penn Central. The issue whether the Council’s decisions amounted to a taking under Penn Central was discussed in the trial court, App. to Pet. for Cert. B-7, the State Supreme Court, 746 A. 2d, at 717, and the State’s own post-trial submissions, see State’s Post-Trial Supplemental Memorandum 7-10. The state-court opinions cannot be read as indicating that a Penn Central claim was not properly presented from the outset of this litigation.
A final ripeness issue remains. In concluding that Williamson County’s final decision requirement was not satisfied, the State Supreme Court placed emphasis on petitioner’s failure to “appl[y] for permission to develop [the] seventy-four-lot subdivision” that was the basis for the damages sought in his inverse condemnation suit. 746 A. 2d, at 714. The court did not explain why it thought this fact significant, but respondents and amici defend the ruling. The Council’s practice, they assert, is to consider a proposal only if the applicant has satisfied all other regulatory preconditions for the use envisioned in the application. The subdivision proposal that was the basis for petitioner’s takings claim, they add, could not have proceeded before the Council without, at minimum, zoning approval from the town of Westerly and a permit from the Rhode Island Department of Environmental Management allowing the installation of individual sewage disposal systems on the property. Petitioner is accused of employing a hide the ball strategy of submitting applications for moré modest uses to the Council, only to assert later a takings action predicated on the purported inability to build a much larger project. Brief for the National Wildlife Federation et al. as Amici Curiae 9.
It is difficult to see how this concern is relevant to the inquiry at issue here. Petitioner was informed by the Council that he could not fill the wetlands; it follows of necessity that he could not fill and then build 74 single-family dwellings upon it. Petitioner’s submission of this proposal would not have clarified the extent of development permitted by the wetlands regulations, which is the inquiry required under our ripeness decisions. The State’s concern may be that landowners could demand damages for a taking based on a project that could not have been constructed under other, valid zoning restrictions quite apart from the regulation being challenged. This, of course, is a valid concern in inverse condemnation cases alleging injury from wrongful refusal to permit development. The instant case does not require us to pass upon the authority of a State to insist in such cases that landowners follow normal planning procedures or to enact rules to control damages awards based on hypothetical uses that should have been reviewed in the normal course, and we do not intend to cast doubt upon such rules here. The mere allegation of entitlement to the value of an intensive use will not avail the landowner if the project would not have been allowed under other existing, legitimate land-use limitations. When a taking has occurred, under accepted condemnation principles the owner’s damages will be based upon the property’s fair market value, see, e. g., Olson v. United States, 292 U. S. 246,255 (1934); 4 J. Sackman, Nichols on Eminent Domain § 12.01 (rev. 3d ed. 2000) — an inquiry which will turn, in part, on restrictions on use imposed by legitimate zoning or other regulatory limitations, see id., § 12C.03[1].
The state court, however, did not rely upon state-law ripeness or exhaustion principles in holding that petitioner’s takings claim was barred by virtue of his failure to apply for a 74-lot subdivision; it relied on Williamson County. As we have explained, Williamson County and our other ripeness decisions do not impose further obligations on petitioner, for the limitations the wetland regulations imposed were clear from the Council’s denial of his applications, and there is no indication that any use involving any substantial structures or improvements would have been allowed. Where the state agency charged with enforcing a challenged land-use regulation entertains an application from an owner and its denial of the application makes clear the extent of development permitted, and neither the agency nor a reviewing state court has cited noncompliance with reasonable state-law exhaustion or pre-permit processes, see Felder v. Casey, 487 U. S. 131, 150-151 (1988), federal ripeness rules do not require the submission of further and futile applications with other agencies.
B
We turn to the second asserted basis for declining to address petitioner’s takings claim on the merits; When the Council promulgated its wetlands regulations, the disputed parcel was owned not by petitioner but by the corporation of which he was sole shareholder. When title was transferred to petitioner by operation of law, the wetlands regulations were in force. The state court held the postregulation acquisition of title was fatal to the claim for deprivation of all economic use, 746 A. 2d, at 716, and to the Penn Central claim, 746 A. 2d, at 717. While the first holding was couched in terms of background principles of state property law, see Lucas, 505 U. S., at 1015, and the second in terms of petitioner’s reasonable investment-backed expectations, see Penn Central, 438 U. S., at 124, the two holdings together amount to a single, sweeping, rule: A purchaser qr a successive title holder like petitioner is deemed to have notice of an earlier-enacted restriction and is
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
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.
FRUIT AND VEGETABLE PACKERS AND WAREHOUSEMEN LOCAL 760, and James Farrington, Appellants, v. Terry C. MORLEY, Vincent Kuntz and Lumina Brownlee, Appellees.
No. 21327.
United States Court of Appeals Ninth Circuit.
May 3, 1967.
Richard P. Donaldson, Bassett, Donaldson & Hafer, Seattle, Wash., for appellants. ■
Ronald F. Whitaker, Walters & Whitaker, Yakima, Wash., for appellees.
Before MADDEN, Senior Judge, U. S. Court of Claims, and BARNES and DUNIWAY, Circuit Judges.
J. Warren Madden, sitting by designation of the Chief Justice.
BARNES, Circuit Judge.
Appellees are members of the appellant union, of which appellant Farrington is secretary-treasurer. As required by 29 U.S.C. § 431(b), the union, by its secretary-treasurer Farrington, filed financial statements (called LM-2 reports) with the government for the years 1962, 1963 and 1964, copies of which were obtained by appellees. At an open union meeting in 1965 Farrington was asked what his salary was but refused to disclose it. Thereafter the appellees, on July 16, 1965, sent a letter to the union reading as follows:
“Gentlemen:
“We have obtained copies of the LM-2 reports for the years 1962, 1963 and 1964 filed by Teamsters Local 760.
“We, the undersigned, request the right in person and with an accountant of our own choosing, to examine all supporting documents relating to salaries and expenses paid to officers and employees of Teamsters Local 760 within the years 1962, 1963 and 1964, and all supporting documents relating to loans made by Teamsters Local 760 during the years 1962, 1963 and 1964. In addition, we request the right, in person and with an accountant of our own choosing, to examine all supporting documents relating to receipts and disbursements during the years 1962, 1963 and 1964.”
The letter was received but never responded to in any way. The information requested has not been made available to appellees.
Unsuccessful in their request for the information, appellees filed suit in the district court to compel the union and Farrington to permit examination of the records supporting the LM-2 reports. Jurisdiction below was challenged, it being alleged to rest on 29 U.S.C. § 431(c):
“Every labor organization required to submit a report under this subchapter shall make available the information required to be contained in such report to all of its members, and every such labor organization and its officers shall be under a duty enforceable at the suit of any member of such organization in any State court of competent jurisdiction or in the district court of the United States for the district in which such labor organization maintains its principal office, to permit such member for just cause to examine any books, records, and accounts necessary to verify such report. The court in such action may, in its discretion, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” (Emphasis added.)
The court found that it had jurisdiction, entered an order that the examination be permitted and awarded appellees attorney’s fees and costs of the examination. We have jurisdiction of the appeal under 28 U.S.C. § 1291.
Appellants raise five specifications of error:
1. The court below erred in failing to hold that appellees’ demand to inspect the union’s records was insufficient because appellees did not indicate to the union any “just cause” for the inspection;
2. The court below erred in holding that appellees had “just cause” for the inspection;
3. The court below erred in failing to hold that appellees’ action was premature and that appellees were required to exhaust their remedies within the union before seeking judicial relief;
4. The court below erred in failing to hold that appellees’ action to compel disclosure of the records substantiating the union’s 1962 LM-2 report was barred by the Washington two-year statute of limitations ; and
5. The court below erred in ordering the appellant union to pay appellees’ attorney’s fee and the costs of examination of the union’s records.
We will treat them in the order presented.
I. The Demand-
Appellants argue that the demand presented to the union was required to specify the “just cause” of the proposed examination before the union was under a duty to submit to that examination. The district court concluded to the contrary, that the surrounding facts and circumstances are to be considered in determining whether just cause was shown. We agree with the district court. •Opinion as to what constitutes “just •cause” may differ. It is an amorphous •concept. It may mean one thing to a union member, and something entirely different to a union officer. Yet the statutory requirement must be judged by the objective standard of the reasonable man.' It is on that basis that we proceed.
The statute itself does not specify who must make a showing of just cause or the lack thereof, when it is to be made, or how it is to be made. Nor •does it require any demand, prior to suit, written or otherwise. Nevertheless, we can assume that the party seeking to examine the union records has the burden •of showing he has just cause. Just cause is in the nature of a prerequisite to the right to examine, and we can rely upon the general rule that the burden is upon the person seeking to enforce a right to show that all of the prerequisites and conditions precedent have been met.
Ascertaining upon whom the burden falls, however, does not limit the manner in which that burden can be sustained. Congress in its wisdom has not fixed any particular mode of demonstrating just cause, nor any particular time for the doing of it. Congress could have required a written demand setting forth the alleged just cause. It did not, and it is not our function to impose such limitations where Congress has not.
In Zastrow v. Teamsters, 56 L.R.R.M. 2873 (Wis.Cir.Ct.1961), the court sustained the union’s demurrer to a petition seeking to enforce certain members’ examination rights. The court held that the union members must make a written demand upon his union which sets forth “(1) cause to examine; and (2) a statement linking records to a specific report.” 56 L.R.R.M. at 2874. The court’s sole authority for this result was the case of Henderson v. Sarle, 45 L.R.R.M. 3037 (N.Y.Sup.Ct.1960). There, without any supporting authority, the court said: “Such a duty [to permit examination] cannot arise until there has been a demand setting forth the cause and relating the books, records and accounts to a specific report.” 45 L.R.R.M. at 3038.
Appellees correctly point out that we are not bound by this authority. We expressly disapprove of any absolute rule established by the Zastrow and Henderson cases. Congress when it established the members’ right to examine the union records was fully aware of the circumstances in which this right would be exercised. Individual members, unschooled in the niceties of labor law, will request verification of certain items in the union reports. Often they will not even anticipate what form that verification will take. In our opinion it was never intended that the exercise of the right to inspection be restricted by requiring a demand with all the technical ritual of a formal pleading.
Appellants direct our attention to the history of this legislation. When Senate Bill 1555 (which later became the Labor-Management Reporting and Disclosure Act of 1959, Pub.L. 86-257, 73 Stat. 519 (1959)) was on the floor of the Senate, Senator Goldwater offered an amendment which would give members the unqualified right to examine union records. Senator Kennedy, fearing that an unqualified right of inspection would lead to harassment, objected to the amendment. As a compromise Senator Goldwater amended his amendment to provide for inspection for “proper cause,” and, as amended, the amendment was adopted. Although this language was omitted in favor of the House version of “just cause”, it seems clear that Congress designed the just cause requirement to prevent continuous and undue harassment, not to pose any barrier to a union member’s honest inquiry into the supporting records. The just cause requirement must be read in a narrow sense when invoked to resist an examination which is admittedly not for harassment. Nor can we rule on such a requirement in a vacuum. The facts of each ease vary. Here, one would think that ordinary courtesy required the union officers, if they suspected an improper motive or undue harassment through appellees’ letter, to at least answer the members’ letter, asking the members to state what their just cause was.
There are two further facts disclosed in the record which make this case unusual.
(1) The unanswered question at the union meeting preceding the letter having to do with the secretary-treasurer’s salary; and
(2) The appellants’ concession that the appellees in this case did have just cause to raise the admitted discrepancy between the statement and its supporting schedule with respect to the amounts paid to officers.
We hold that the just cause requirement of 29 U.S.C. § 431(c) need not be established in a written demand to the union or its officers for permission to examine records. It is sufficient if, at a time reasonably concurrent to the demand, be it written or oral, the union officers in charge of the records sought to be examined know, or should know, that the requesting member has just cause to seek examination.
The demand in this case did not set forth any facts which would constitute just cause. Appellants argue that the union has a right to have the just cause presented to it before the judicial process is invoked. The cases holding that a demand must be made support this position. See International Brotherhood of Teamsters, etc. v. Wirtz, 120 U.S.App.D.C. 346, 346 F.2d 827, 832 (1965) (assuming a demand is required), Coratella v. Roberto, 56 L.R.R.M. 2068, 2071, order withdrawn for reasons not material here, 56 L.R.R.M. 2668 (U.S. Dist.Conn.1964). We agree that it is only reasonable that the union have the first opportunity to consider any alleged just cause presented by its members.
That right of the union, however, to advance notice is not an absolute prerequisite to the jurisdiction of the district court. The statute does not make it so. It is only after reference to the right to enforce by suit is made that any reference to just cause occurs. Advance notice is a procedural step in enforcing the members’ rights, designed to facilitate the recognition of the right without resort to the judicial process. It was a right possessed by the union, and one which could be waived. We are of the opinion that it was waived. Here the members presented a written demand to inspect the records. The union’s answer was to ignore the demand. Had it wished to exercise its right to have a showing of just cause, the union should have asked the demanding members to allege such cause. To completely ignore the members’ demand is inconsistent with the purpose of the union’s right to first consider the just cause allegation. To ignore the members’ demand is - a reflection of the union officers’ attitude that they are unconcerned with the demand, whether or not it is supported by just cause. We cannot lose sight of the relationship between a union officer and member. The officer is not the owner or monarch of the union. He is a trustee, a servant of the members’ interests. The union property, though entrusted to an officer’s possession, belongs to the members. It is an abnegation of the officer’s position of high trust and solemn responsibility to disdainfully neglect an application of this kind from a member, unless convinced it was absolutely without basis or merit. We conclude that any right the union had to be forewarned of the just cause for inspection was waived by the conduct of the union after receiving the demand. We therefore conclude that, within the facts and circumstances of this case, the demand was sufficient. II. The Just Cause
Beyond the question of the union’s right to be first informed of the existence of that which a member may think is just cause, is the question of whether such cause in fact existed. Though the union might by its conduct waive the right to be first informed, it cannot alter the statutory structure which provides that enforcement shall be ordered only for just cause. The court below found that just cause existed, and we agree.
The standard for determining whether there was just cause is necessarily minimal. Just cause need not be shown beyond a reasonable doubt, nor by a preponderance of the evidence. It need not be enough to convince a reasonable man that some wrong has been done; it is enough if a reasonable union member would be put to further inquiry. Perhaps it will be that a certain item is disproportionately high, as in Rekant v. Rabinowitz, 194 F.Supp. 194 (E.D.Pa. 1961), and Coratella v. Roberto, supra, or that an officer contends that he did not incur the claimed expenses, as in Deacon v. Operating Eng’rs, Local 12, 52 L.C. 16,609 (Calif.Super.Ct. 1965). Irrespective of the nature of the asserted cause, the test must be whether reason would require substantiation.
As mentioned above, at an open meeting of the union Farrington was asked what his salary was. He refused to answer. There was an admitted discrepancy between a statement and its supporting schedule, regarding the amounts paid to officers. The 1964 report shows a loan to Century Associated of $50,000, over half of the local’s total assets, without conforming to the statutory requirement that the purpose of the loan be shown. (Plaintiffs’ Exh. 1, p. 3; 29 U.S.C. § 431(b) (4).) These undisputed items are just cause for permitting an examination of the union’s records.
III. Exhaustion of Remedies
The union contends that the district court could not grant the relief requested until the members had exhausted all of their intraunion remedies. To support this proposition it cites section 101(a) (4) of the Labor-Management Reporting and Disclosure Act of 1959 (now 29 U.S. C. § 411(a) (4)):
“No labor organization shall limit the right of any member thereof to institute an action in any court, * * * Provided, That any such member may be required to exhaust reasonable hearing procedures * * * within such organization, before instituting legal or administrative proceedings against such organizations or any officers thereof: * *
Apparently the court below felt that the “exhaustion” requirement of § 411(a) (4) did not apply to a proceeding under § 431(c). Some courts would probably disagree. Harris v. International Longshoremen’s Ass’n, Local 1291, 321 F.2d 801 (3d Cir. 1963). Contra, Coratella v. Roberto, supra. In Edsberg v. Local Union No. 12 of International Union of Operating Engineers, 300 F.2d 785 (9th Cir. 1962), we accepted the policy that the courts should in most circumstances forbear in order to permit intraunion adjustment of difficulties. There may be strong support for the union’s contention that § 411(a) (4) applies to proceedings under § 431(c), but a precise ruling on the question is not required in this case.
In the Edsberg case we recognized that the exhaustion of intraunion remedies doctrine cannot apply unless there is available from the union a remedy which is neither uncertain nor futile. Inherent in this proposition is the idea that to invoke the exhaustion principle the union must show that there was a procedure available to the members within the union structúre reasonably calculated to redress the particular grievance complained of. “Where a union moves to dismiss the complaint, it should place before the court facts establishing that union remedies are available to the plaintiff and that plaintiff has neglected to use them.” Forline v. Helpers Local No. 42, 211 F.Supp. 315, 317 (E.D.Pa.1962) (emphasis by the court). It should be noted that § 411 (a) (4) allows only “reasonable” hearing procedures to bar court action.
In the present case the union’s argument on exhaustion of intraunion remedies is premised on its assertion that charges could have been filed against Farrington under Article XIX, Section 6 of the International Constitution of the Teamsters Union. (Def. Exh. 1, pp. 107-108.) That section lists certain breaches, none of which are involved here, for which a member or officer can be tried by the union. There is language that the list is not exclusive, but Section 1(a) of Article XIX indicates that filing charges is a remedy for offenses against the Teamster Constitution.
The duty to permit examination arises elsewhere. It is placed upon union officers by Act of Congress. The union provides remedies for violation of its own rules, not, necessarily, for violation of the laws of the United States. Without any showing that there was some procedure, neither uncertain nor futile, by which the appellees might have redressed the violation of their statutory right to-inspect the union records, they cannot be barred from the courts for failure to exhaust intraunion remedies.
IV. The Washington Statute of Limitations
The union advances the contention that this action is in part barred by the Washington statute of limitations, Rev.Code of Wash. § 4.16.130: “An action for relief not hereinbefore provided for, shall be commenced within two years after the cause of action shall have accrued.” As to the 1962 records, the union contends that the cause of action arose on the April 1, 1963 filing date.
Judge Ely, speaking for this court in International Union of Operating Engineers, etc. v. Fischbach and Moore, Inc., 350 F.2d 936 (9th Cir. 1965), cert. denied sub nom. C. D. Draucker, Inc. v. International Union of Operating Engineers, etc., 384 U.S. 904, 86 S.Ct. 1336, 16 L.Ed.2d 358 (1966), held that actions for damages under the Labor-Management Reporting and Disclosure Act of 1959, particularly § 303 thereof (29 U.S. C. § 187), are controlled by the state statute of limitations. The rationale of' that decision was that since Congress-had indicated no time limit, the Rules of Decision Act (28 U.S.C. § 1652) required reference to the state law. Ap~ pellants argue that Fischbach and Moore is controlling here; Congress imposed no time limit, so the law of Washington applies. Appellees contend that Congress, in requiring that supporting records be kept for five years (29 U.S.C. § 436), in effect established a five-year statute of limitations for actions under § 431 (c).
The bar of a statute of limitations is an affirmative defense, as appellants noted in their answer (C.T. pp. 8-9). They were thus required to prove every element of the defense. Belling-ham Securities Syndicate, Inc. v. Belling-ham Coal Mines, Inc., 13 Wash.2d 370, 125 P.2d 668 (1942). The only statute which they allege as a bar is the Washington statute quoted above. We find that under Washington law the cause of action accrues when all of the conditions precedent have been met. Washington Security Co. v. State, 9 Wash.2d 197, 114 P.2d 965, 135 A.L.R. 1330 (1941). Where the condition precedent to bringing an action is the making of a demand, the period runs from the time when it could first have been made. Jones v. Jacobson, 45 Wash.2d 265, 273 P.2d 979 (1954); Edison Oyster Co. v. Pioneer Oyster Co., 22 Wash.2d 616, 157 P.2d 302 (1945). In this case, under the statutory requirement of just cause, demand could not have been made until the appellees had just cause. It was incumbent upon the appellants to prove this element, which they did not. They seem to suggest that the right of action could not have accrued later than the last day for filing the reports in question. (Appellants’ Brief, pp. 28-29.) But it was their burden to prove the time when the appellees actually had just cause, not when they might have. Having failed to prove this element, the action is not barred by the Washington statute.
We deem it advisable to point out that our resolution of the question of the effect of the Washington statute is not a decision that state statutes of limitations control actions based on 29 U.S.C. § 431(c), nor does it foreclose the possibility that 29 U.S.C. § 436 established a five-year statute of limitations for such actions. Our decision goes only as far as it must, that appellants’ affirmative defense is not valid for failure to prove a necessary element of that defense.
Y. Attorney’s Fees and Costs of the Examination
The statute which creates the cause of action vests the district court with discretion as to the award of an attorney’s fee. 29 U.S.C. § 431(c). We find no abuse of that discretion and affirm that award. However, there is no statutory authority for awarding the costs of examination. We therefore order the district court’s order modified to delete the award of the costs of examination. In all other respects we affirm.
Order, as modified, affirmed.
. Appellants on this appeal apparently concede the jurisdiction of the district court. (Appellants’ Brief, p, 1.)
. Tlie district court apparently felt that Farrington’s salary of $20,470 and reimbursed expenses of $6,272 in 1964 were high, and that the amount of expenses alone would be just cause. Though it might be that this expense item, standing alone, might be just cause, see Rekant v. Rabinowitz, 194 F.Supp. 194 (E.D.Pa.1961), we need not consider it since we have found ample cause in the items mentioned.
. Detroy v. American Guild of Variety Artists, 286 F.2d 75, 81 (2d Cir. 1961), cert, denied 366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388 (1961), suggests that failure to exhaust intraunion remedies is not a bar unless the available remedy has been specifically brought to the attention of the complainant.
. There is some authority for the proposition that failure to exhaust intraunion remedies is an affirmative defense so that the union has the burden of showing the existence of adequate procedures. Murphy v. International Brotherhood of Teamsters, 56 L.R.R.M. 2885 (W.D.Ky. 1964). Contra, under the law of New York, Henderson v. Sarle, 45 L.R.R.M. 3037 (N.Y.Sup.Ct.1960).
. Indeed, appellants continue to take the position (in their briefs, though not at oral argument) that there was no just cause. If so, the period of limitations could not yet have begun to run, much less have expired.
. There is authority for an award of the costs of the action, but no such award was made here.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
sc_certreason
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
LUCE v. UNITED STATES
No. 83-912.
Argued October 3, 1984
Decided December 10, 1984
Burger, C. J., delivered the opinion of the Court, in which all other Members joined, except Stevens, J., who took no part in the consideration or decision of the case. Brennan, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 43.
James I. Marcus argued the cause and filed a brief for petitioner.
Bruce N. Kuhlik argued the cause pro hac vice for the United States. With him on the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Sara Criscitelli.
Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to resolve a conflict among the Circuits as to whether the defendant, who did not testify at trial, is entitled to review of the District Court’s ruling denying his motion to forbid the use of a prior conviction to impeach his credibility.
I
Petitioner was indicted on charges of conspiracy, and possession of cocaine with intent to distribute, in violation of 21 U. S. C. §§ 846 and 841(a)(1). During his trial in the United States District Court for the Western District of Tennessee, petitioner moved for a ruling to preclude the Government from using a 1974 state conviction to impeach him if he testified. There was no commitment by petitioner that he would testify if the motion were granted, nor did he make a proffer to the court as to what his testimony would be. In opposing the motion, the Government represented that the conviction was for a serious crime — possession of a controlled substance.
The District Court ruled that the prior conviction fell within the category of permissible impeachment evidence under Federal Rule of Evidence 609(a). The District Court noted, however, that the nature and scope of petitioner’s trial testimony could affect the court’s specific evidentiary rulings; for example, the court was prepared to hold that the prior conviction would be excluded if petitioner limited his testimony to explaining his attempt to flee from the arresting officers. However, if petitioner took the stand and denied any prior involvement with drugs, he could then be impeached by the 1974 conviction. Petitioner did not testify, and the jury returned guilty verdicts.
II
The United States Court of Appeals for the Sixth Circuit affirmed. 713 F. 2d 1236 (1983). The Court of Appeals refused to consider petitioner’s contention that the District Court abused its discretion in denying the motion in limine without making an explicit finding that the probative value of the prior conviction outweighed its prejudicial effect. The Court of Appeals held that when the defendant does not testify, the court will not review the District Court’s in limine ruling.
Some other Circuits have permitted review in similar situations; we granted certiorari to resolve the conflict. 466 U. S. 903 (1984). We affirm.
III
It is clear, of course, that had petitioner testified and been impeached by evidence of a prior conviction, the District Court’s decision to admit the impeachment evidence would have been reviewable on appeal along with any other claims of error. The Court of Appeals would then have had a complete record detailing the nature of petitioner’s testimony, the scope of the cross-examination, and the possible impact of the impeachment on the jury’s verdict.
A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify.
Any possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner’s credibility at trial by means of the prior conviction.
When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government’s case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.
Because an accused’s decision whether to testify “seldom turns on the resolution of one factor,” New Jersey v. Portash, 440 U. S. 450, 467 (1979) (Blackmun, J., dissenting), a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify. In support of his motion a defendant might make a commitment to testify if his motion is granted; but such a commitment is virtually risk free because of the difficulty of enforcing it.
Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. See generally United States v. Hasting, 461 U. S. 499 (1983). Were in limine rulings under Rule 609(a) re viewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term “harmless” an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to “plant” reversible error in the event of conviction.
Petitioner’s reliance on Brooks v. Tennessee, 406 U. S. 605 (1972), and New Jersey v. Portash, supra, is misplaced. In those cases we reviewed Fifth Amendment challenges to state-court rulings that operated to dissuade defendants from testifying. We did not hold that a federal court’s preliminary ruling on a question not reaching constitutional dimensions — such as a decision under Rule 609(a) — is reviewable on appeal.
However, Justice Powell, in his concurring opinion in Portash, stated essentially the rule we adopt today:
“The preferred method for raising claims such as [petitioner’s] would be for the defendant to take the stand and appeal a subsequent conviction .... Only in this way may the claim be presented to a reviewing court in a concrete factual context.” 440 U. S., at 462.
We hold that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify. Accordingly, the judgment of the Court of Appeals is
Affirmed.
Justice Stevens took no part in the consideration or decision of this case.
Rule 609(a) provides:
“General Rule. — For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.”
“In limine” has been defined as “[o]n or at the threshold; at the very beginning; preliminarily.” Black’s Law Dictionary 708 (5th ed. 1979). We use the term in a broad sense to refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.
See, e. g., United States v. Lipscomb, 226 U. S. App. D. C. 312, 332, 702 F. 2d 1049, 1069 (1983) (en banc); United States v. Kiendra, 663 F. 2d 349, 352 (CA1 1981); United States v. Fountain, 642 F. 2d 1083, 1088 (CA7), cert. denied, 451 U. S. 993 (1981); United States v. Toney, 615 F. 2d 277, 279 (CA5), cert. denied, 449 U. S. 985 (1980). The Ninth Circuit allows review if the defendant makes a record unequivocally announcing his intention to testify if his motion to exclude prior convictions is granted, and if he proffers the substance of his contemplated testimony. See United States v. Cook, 608 F. 2d 1175, 1186 (1979) (en banc), cert. denied, 444 U. S. 1034 (1980).
Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court’s inherent authority to manage the course of trials. See generally Fed. Rule Evid. 103(e); cf. Fed. Rule Crim. Proc. 12(e).
Requiring a defendant to make a proffer of testimony is no answer; his trial testimony could, for any number of reasons, differ from the proffer.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_majvotes
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2
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
UNITED STATES of America v. Eddie Lee ALSTON a/k/a Eddie Lee, Appellant.
No. 77-2050.
United States Court of Appeals, District of Columbia Circuit.
Argued June 21, 1978.
Decided Oct. 22, 1979.
Allan Abbot Tuttle, Washington, D. C. (appointed by this Court), for appellant.
Whitney M. Adams, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Sil-bert, U. S. Atty., John A. Terry, Peter E. George, Brian W. Shaughnessy and Raymond Banoun, Asst. U. S. Attys., Washington, D. C., were on the brief, for appel-lee.
Before BAZELON, Senior Circuit Judge, and TUTTLE, Senior Circuit Judge for the Fifth Circuit, and ROBB, Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge BAZELON.
Dissenting opinion filed by Circuit Judge ROBB.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
BAZELON, Senior Circuit Judge:
Appellant was convicted by a jury on all counts of a thirty-five count indictment charging violations of both federal and District of Columbia statutes. The offenses stemmed from a scheme in which appellant would be paid to have an accomplice delete adverse information from, and add fictitious favorable information to, the computerized credit files of individuals who had difficulty obtaining credit. The altered credit records would then be sent for approval to various lending institutions, ultimately allowing these individuals to purchase automobiles or other items. The indictment, which was based on only eight credit transactions, included one count of conspiracy, twenty-five counts of mail and wire fraud (counts 2-21 and 22-26), three counts of false statements to a federally insured bank (counts 27-29), and six counts of D.C. felony false pretenses (counts 30-35).
Certain of the multiple convictions under both federal and local law are contrary to congressional intent, requiring vacation of two or four convictions. Furthermore, the mailings at issue here cannot sustain convictions under the mail fraud statute because they occurred after the scheme to defraud had reached fruition. Finally, we vacate the sentences imposed on counts 27 through 29 of the indictment because they exceed the statutory maximum, and we remand for resentencing in accordance with 18 U.S.C. § 1014 and this opinion. The remainder of the judgment of the District Court is affirmed.
I.
MULTIPLE CONVICTIONS UNDER FEDERAL AND D.C. LAW
Each fraudulent credit transaction gave rise to multiple charges against Alston. In one transaction, an altered credit application and an altered credit report were sent by teletype (counts 13 and 15, wire fraud) to a federally insured savings bank (count 27, federal false statements), the applicant obtained an automobile loan from the bank (count 34, D.C. false pretenses), and the bank notified the dealer about the loan by telephone (count 20, wire fraud). In a second transaction, an individual applied for a home improvement loan from a federally insured bank (count 28, federal false statements), the credit bureau teleeopied an altered credit record to the bank (count 14, wire fraud), and the applicant obtained the loan (count 33, D.C. false pretenses). In four other transactions, applicants obtained automobile loans from a finance company (counts 30, 31, 32 and 35, D.C. false pretenses); in these transactions, wire fraud was charged for each time the automobile dealer telecopied a fraudulent application to the finance company (counts 2, 6, 9 and 11), the credit bureau telecopied an altered credit record to the lender (counts 3, 7, 10, 12 and 16), and the lender telephoned notice of loan approval to the dealer (counts 17, 18, 19 and 21). Mail fraud was charged each time the dealer mailed a completed sales contract to the lender (counts 22 through 26). Two remaining transactions, which involved unsuccessful attempts to obtain loans, triggered charges of federal false statements (count 29) and wire fraud (counts 4, 5, and 8).
This case raises problems that flow from an overkill of charges against a defendant. Pyramiding charges is particularly troublesome in the District of Columbia, where local and federal offenses can be joined in one indictment pursuant to 11 D.C.Code § 502 (1973).
Appellant argues that the multiple convictions under federal and local law denied him equal protection of the laws. Subsequent to the submission of this case for decision, this court has clarified the method by which we will analyze challenges to convictions under both federal and local law when the acts complained of arise within essentially the same transaction. As explained in United States v. Dorsey, the court must determine whether Congress intended to authorize multiple punishments under the particular statutes in question, and if so, whether the multiple punishments are constitutional. Therefore, we first consider whether Congress intended to impose multiple punishments for a single fraudulent transaction that violates both the D.C. false pretenses statute and either the federal false statements statute or the federal mail and wire fraud statutes. Because of the similar purposes underlying the false pretenses and false statements statutes, we think that Congress did not intend multiple punishments in the circumstances presented here. On the other hand, we do discern a congressional intent to impose multiple punishments when an act or transaction violates both the false pretenses and the mail or wire fraud statutes.
A.
The D.C. false pretenses statute, 22 D.C.Code § 1301 (1973), provides that “[wjhoever, by any false pretense, with intent to defraud, obtains from any person any service or anything of value,” shall be subjected to imprisonment for up to three years. The federal false statements statute, 18 U.S.C. § 1014 (1976), provides that “[w]hoever knowingly makes any false statement or report, . . . for the purpose of influencing in any way the action of . any [federally insured] bank” can be imprisoned for not more than two years.
Congress clearly defined separate offenses in each statute: “each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180,182, 76 L.Ed. 306 (1932); see Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Conviction on the local charge of false pretenses requires proof of the following elements: (1) a false representation; (2) knowledge of the falsity; (3) intent to defraud; (4) reliance by the defrauded party; and (5) obtaining something of value as a result of the false representation. Conviction on the federal charge of false statements requires proof of (1) a material false statement, (2) to a federally insured financial institution, (3) for the purpose of influencing the action of the institution.
On their face, the local and federal statutes address different interests. The local statute focuses on the loss of anything of value, regardless of the identity of the victim. The federal statute is designed to protect specific financial institutions from fraud “in connection with loans or other similar transactions.” The federal offense is complete when the false statement is made; it does not require that the bank actually part with something of value.
Yet some fraudulent loan applications might result in the grant of a loan, as occurred here, resulting in separate criminal charges based on the same act or acts. In this case, proof of the federal false statements charge coincided with proof of the D.C. false pretenses charge, except for the element of obtaining the loan: the “false statement” knowingly made was a “false representation”knowingly made; the “purpose of influencing the action” of the bank was the “intent to defraud” the bank to obtain a loan; and a bank having federally insured deposits was the “defrauded party” acting in reliance on the fraudulent application. Thus, in the context of this case the two counts allege essentially the same offense. Moreover, the three year maximum sentence under the D.C. false pretenses statute — applicable when a loan is actually obtained — appears analogous to an enhancement of the two years maximum sentence under the federal false statements statute — applicable when a false statement is made in an attempt to obtain a loan.
“[U]nless the intent of Congress is stated ‘clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.’ ” Since we find no such statement here, we apply “a corollary of the rule of lenity, an outgrowth of our reluctance to multiply punishments absent a clear and definite legislative directive.” Simpson v. United States, 435 U.S. 6, 15-16, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978). Accordingly, we direct vacation of the convictions under either counts 27 and 28 (false statements) or counts 33 and 34 (false pretenses) of the renumbered indictment, and appropriate re-sentencing of appellant.
B.
We turn now to the multiple punishments under the federal mail or wire fraud statutes and the D.C. false pretenses statute. The mail and wire fraud statutes prescribe a penalty for each use of the mails or wires “for the purpose of executing” a scheme to defraud or to obtain money or property by means of false pretenses. The focus of each statute is upon the misuse of the instrumentality of communication. The interest to be protected under these federal statutes is clearly distinct from the property interest safeguarded by the local statute. Several courts have found that Congress intended to authorize multiple punishment under both the mail or wire fraud statute and other federal fraud statutes. We conclude that Congress likewise intended violations of the mail or wire fraud statute to be separately punishable from violations of the local false pretenses statute.
Under the analytical framework established in United States v. Dorsey, supra, we next consider a constitutional inquiry:
[E]ven if Congress intends to punish a defendant twice for violating two statutory provisions, the double jeopardy clause may bar such multiple punishment at a single trial if the two statutory provisions constitute the “same offense” under Blockburger.
591 F.2d at 942.
The statutes in question clearly define separate offenses. Conviction for mail or wire fraud requires proof of only two elements: (1) a scheme to defraud, and (2) use of the mails or wires for the purpose of executing the scheme. Conviction for false pretenses requires proof of several additional elements, and does not require proof of use of the mails or wires. Since each requires proof of a fact that the other does not, they are clearly not the “same offense” under Blockburger. Thus, the double jeopardy clause does not prohibit multiple punishments under these statutes.
Appellant advances a second constitutional question in his claim that the multiple punishments denied him equal protection of the laws. This claim rests on an assumption that no defendant outside the District of Columbia would be subject to such double punishment because the Department of Justice’s Petite policy bars successive state-federal prosecutions for “the same act or acts.” The Petite policy was announced in 1959 in direct response to the Supreme Court’s rulings that the Constitution does not prohibit state and federal governments from prosecuting a defendant for the same act. As the Court recently explained in Rinaldi v. United States, 434 U.S. 22, 29, 98 S.Ct. 81, 85, 54 L.Ed.2d 207 (1977): “Although not constitutionally mandated, this [Petite] policy serves to protect interests which, but for the ‘dual sovereignty’ principle inherent in our federal system, would be embraced by the Double Jeopardy Clause.”
Although we recognize that the Petite policy is of long standing and strictly enforced, we conclude that it provides no basis for a successful equal protection claim here. The Petite policy is not law, but rather an executive policy that permits of exceptions in the Attorney General’s discretion. The federal government remains free, under the Supreme Court’s ruling in Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), to bring a federal prosecution subsequent to a state prosecution. Furthermore, neither the Petite policy nor the Constitution serves as a bar to a state prosecution and sentence following a federal prosecution and sentence. It is possible, therefore, that defendants outside the District could be punished for both federal and state offenses arising from the same act or transaction.
II.
INTENT TO DEFRAUD
Appellant also argues that the evidence did not establish the intent to defraud required for convictions under the federal mail and wire fraud statutes, and the local false pretenses statute. Conceding that the loan applications and credit records were falsified in order to allow the applicants to obtain credit, appellant nevertheless contends that there was no intent to defraud because the applicants intended to repay the loans and because retention of a security interest in the goods made the loans risk free.
The requisite intent under the federal mail and wire fraud statutes may be inferred from the totality of the circumstances and need not be proven by direct evidence. Where, as here, the relevant documents contained material misrepresentations designed to induce an extension of credit that would not otherwise be made, the jury could reasonably infer intent to defraud. In addition, the misrepresentations in each transaction were made on two key documents and by several people acting in concert, thus increasing the likelihood that the creditor would be deceived as to the nature of the financial risk involved. We believe these facts support the jury’s verdict.
We also conclude that intent to defraud under the local false pretenses statute cannot turn solely upon an applicant’s alleged intent to repay the loan. In these transactions, the probabilities of repayment by the borrower over the long term were less than the lender was led to believe. We are not unmindful that installment and other credit sales have created financial problems of substantial proportions for consumers and creditors alike. Many consumers are financially incapable of paying outstanding debts, despite good intentions. Consequently, we cannot sanction a scheme whereby would-be borrowers fraudulently obtain loans that would not otherwise be available to them, regardless of whether they might have intended to repay so long as they were capable of doing so.
III.
USE OF THE MAILS
Finally, appellant asserts that his convictions on the five counts of mail fraud (counts 22-26) cannot stand. Each count arises from the mailing of an installment sales contract to the lender by the automobile dealer. Appellant argues that, because these mailings occurred after each applicant had taken possession of an automobile, they occurred after the scheme to defraud had reached fruition and were not sufficiently connected to the fraud to fall within the scope of the statute. If appellant is correct, then the convictions are invalid. See United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974).
For conviction under the mail fraud statute, the mails must be used “for the purpose of executing” the fraudulent scheme, and not merely “as a result of” such scheme. See id. at 405, 94 S.Ct. 645. In Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), the Supreme Court held that a scheme involving fraudulently obtained checks was completed once the checks were cashed. The Court reasoned that the defendants had intended to receive money, and that the money had been received “irrevocably” when they cashed the checks. Thus, when the payor banks mailed the checks to the drawee bank for collection, the mailings were not for the purpose of executing the scheme. See id. at 94, 65 S.Ct. 148. Similarly, in Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960), the defendants had obtained gasoline and other products and services by the unauthorized use of a credit card issued to their employer. The defendants were charged with mail fraud for having “caused” the sending of invoices to the employer and the sending of payments to the issuer. The Court held the convictions invalid on the ground that defendants’ scheme reached fruition when the goods and services were received, because “[i]t was immaterial to them, or to any consummation of the scheme, how the [oil company] would . . . collect” its payment. Id. at 393, 80 S.Ct. at 1184. Most recently, in United States v. Maze, supra, the Court ruled that mailings of credit card sales invoices by merchants to a bank, and by the bank to the credit card holder, could not support mail fraud convictions because the defendant, who had stolen the credit card, had irrevocably received the goods and services before the mailings occurred. Nor did the subsequent mailings constitute “ ‘deliberate, planned use of the mails’ ” by the perpetrator to aid the continuation or concealment of the fraudulent scheme. 414 U.S. at 403, 94 S.Ct. at 650 (quoting United States v. Sampson, 371 U.S. 75, 80, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962)). Thus, the mail fraud statute was inapplicable to the mailings.
Appellant here argues that, since the object of the scheme was to obtain an automobile, it reached fruition once the car was driven off the dealer’s lot. The Government, on the other hand, contends that the object was to obtain credit and use of the car over the loan period. Under this theory, the mailing of the conditional sales contract after the loan applicant had obtained credit approval and a car would be within the coverage of the statute.
We believe that the scheme to defraud reached fruition before the mailing of each conditional sales contract. The dealer’s mailing of the contract, which contained the terms of payment and an assignment of the contract to the lending institution, neither furthered the objective of the scheme (i. e., obtaining a loan for the applicant) nor served to conceal the fraudulent representations. Although the signing of the installment contract may have been a contemplated step toward obtaining possession of the car, we believe the subsequent mailing was immaterial to the fraud perpetrated upon the lender by the borrower. We therefore vacate the convictions on counts 22 through 26 on the grounds that the mailings were not “for the purpose of executing” the scheme to obtain loans.
IV.
Por the foregoing reasons, we vacate the judgment of the District Court with respect to counts 22 through 29 and counts 33 and 34 of the indictment, and we remand for resentencing in accordance with 18 U.S.C. § 1014 and this opinion. The remainder of the judgment is affirmed.
It is so ordered.
. 18 U.S.C. § 371 (1976).
. 18 U.S.C. § 1341 (1976).
. 18 U.S.C. § 1343 (1976).
. 18 U.S.C. § 1014 (1976).
. 22 D.C.Code § 1301 (1973).
. In imposing sentence, the District Court inadvertently referred to a copy of the indictment other than the renumbered indictment returned by the Grand Jury. All references in this opinion are to the renumbered indictment.
The District Court imposed concurrent sentences of twenty months to five years on counts “1 through 29,” and eight months to two years on counts “30 through 32.” On counts “33 through 35,” the District Court imposed sentences of ten months to three years, concurrent with each other but consecutive to the sentences imposed on counts 1 through 32. Counts 27 through 29 of the renumbered indictment, however, are federal false statements charges carrying a maximum sentence of two years; thus, the imposed sentences of five years on these counts must be vacated.
. Appellant also argues that the trial court erred both in declining to poll the jury concerning a television news segment broadcast during the trial, and in allowing the prosecutor to cross-examine appellant concerning plea bargaining after the subject was raised by appellant on direct examination. In light of the record as a whole, including the various cautionary instructions to the jury with respect to these matters, we find no abuse of discretion by the trial court.
. See United States v. Girst, (D.C. Cir. No. 77-1604, decided Mar. 28, 1979); United States v. Dorsey, 192 U.S.App.D.C. 313, 591 F.2d 922 (1978).
. 192 U.S.App.D.C. 313, 328, 591 F.2d 922, 937 (D.C. Cir. 1978).
. Fowler v. United States, 374 A.2d 856, 859 (D.C.Ct.App. 1977).
. E. g., United States v. Potts, 540 F.2d 1278, 1280 (5th Cir. 1976); United States v. Savatino, 485 F.2d 540, 544 (2d Cir. 1973), cert. denied, 415 U.S. 948, 94 S.Ct. 1469, 39 L.Ed.2d 563 (1974).
. H.R.Rep.No. 1784, 91st Cong., 2d Sess. 66 (1970) (Conference Report); H.R.Rep.No. 1556, 91st Cong., 2d Sess. 35 (1970) U.S.Code Cong. & Admin.News 1970, p. 5582; see United States v. Lentz, 524 F.2d 69, 71 (5th Cir. 1975), rehearing en banc denied, 526 F.2d 815 (5th Cir. 1976).
. See, e. g., United States v. Trexler, 474 F.2d 369, 372 (5th Cir.), cert. denied, 412 U.S. 929, 93 S.Ct. 2759, 37 L.Ed.2d 157 (1973).
. Only two of eight fraudulent applications did not yield loans in this case.
. Cf. United States v. Girst, supra note 8, slip op. at 10 (transportation in interstate commerce of a firearm by a felon was, on the facts presented, a single offense which could not be punished under two federal statutes).
. United States v. Knight, 166 U.S.App.D.C. 21, 509 F.2d 354, 361-62 (D.C. Cir. 1974), quoting United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114, 126-27 (D.C. Cir. 1972); see United States v. Dorsey, supra note 8, at 930.
. 18 U.S.C. § 1341 provides in pertinent part:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, ... or knowingly causes to be delivered by mail . . . any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. [Emphasis added.]
. 18 U.S.C. § 1343 provides in pertinent part:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, transmits or causes to be transmitted by means of wire, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both. [Emphasis added.]
. See, e. g., United States v. Joyce, 499 F.2d 9, 18 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974); Henderson v. United States, 425 F.2d 134, 138 n. 4 (5th Cir. 1970); Hanrahan v. United States, 121 U.S. App.D.C. 134, 348 F.2d 363, 366 (D.C. Cir. 1965), cert. denied, 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111 (1967).
. The mail fraud statute and the wire fraud statute have both been construed as authorizing multiple convictions for multiple fraudulent uses. See, e. g., United States v. Calvert, 523 F.2d 895, 903 n. 6, 903-04 (8th Cir. 1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976); Henderson v. United States, 425 F.2d 134, 138 n. 4 (5th Cir. 1970).
. See, e. g., United States v. Weatherspoon, 581 F.2d 595, 600 (7th Cir. 1978) (mail fraud and false statements); United States v. Mahler, 579 F.2d 730, 731 & n. 2 (2d Cir.) (mail and wire fraud and securities fraud), cert. denied, 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666 (1978).
. Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954); United States v. Pollack, 175 U.S.App.D.C. 227, 534 F.2d 964, 971 (D.C. Cir. 1976), cert. denied, 429 U.S. 924, 97 S.Ct. 324, 50 L.Ed.2d 292 (1976).
. See text accompanying note 10 supra.
. See Petite v. United States, 361 U.S. 529, 530, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960).
. The policy, as originally stated by the Attorney General, is: “After a state prosecution there should be no federal trial for the same act or acts unless the reasons are compelling.” U.S. Dep’t of Justice Press Release at 1 (Apr. 6, 1959).
For a recent critical discussion of the Petite policy, see Note, The Problem of Double Jeopardy in Successive Federal-State Prosecutions: A Fifih Amendment Solution, 31 Stan.L.Rev. 477, 488-96 (1979).
. See Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).
. In Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977), the Supreme Court held that federal courts must respect even a belated effort by the Justice Department to invoke the Petite policy. Defendant in Ri-naldi was charged with state offenses and was then indicted for federal offenses stemming from a hotel robbery. He was convicted of the state charges and sentenced to six years’ imprisonment. Subsequent to the state conviction, two federal trials were held, the first having ended in a mistrial. Defendant was convicted of the federal charges after a jury trial, and was sentenced to twelve years’ imprisonment to run concurrently with the state sentence. On appeal from the federal judgment, defendant argued that his conviction violated the Petite policy. The Government agreed and asked the appellate court to remand the case so that the Government could move to dismiss the indictment. After remand, the District Court denied the Government’s motion to dismiss and the Fifth Circuit en banc affirmed the lower court’s ruling. But the Supreme Court vacated the judgment and ordered dismissal of the indictment. In so doing the Court stated that, although the expenditure of judicial and prose-cutorial resources was by then irreparable, “ ‘no societal interest would be vindicated by punishing further a defendant who has already been convicted and has received a substantial sentence in state court. . . Id. at 31, 98 S.Ct. at 86 (quoting Solicitor General).
. See United States v. Jones, 174 U.S.App. D.C. 34, 527 F.2d 817, 821-23 (D.C. Cir. 1975).
. If a United States Attorney believes that a dual prosecution would be appropriate under the “compelling reasons” standard, he or she can request approval from the Assistant Attorney General of the relevant Division and then from the Attorney General. See U.S. Dep’t of Justice Press Release, supra note 25, at 1.
. See Rinaldi v. United States, supra note 27, 434 U.S. at 29, 98 S.Ct. 81 (discussing with approval the “dual sovereignty” principle).
. We note in passing that this case presents another example of “the injustice engendered by the unfettered and generally unguided exercise of that awesome power” of prosecutorial discretion. United States v. Roberts, 600 F.2d 815, 818 (D.C.Cir.1978), rehearing en banc denied (Apr. 30, 1979), cert. granted, - U.S. -, 100 S.Ct. 42, 62 L.Ed.2d 29 (1979). Statement of Bazelon, Circuit Judge, as to why he voted for rehearing en banc, slip op. at 7 n. 12.
The Supreme Court decisions in Abbate and Bartkus, supra note 26, holding that both the federal and state governments may prosecute a defendant for the same act or acts, are grounded in principles of federalism: where the laws of two “sovereigns” are violated, each government may have a legitimate reason for exercising its power of criminal prosecution. But this underlying rationale is absent where a defendant is prosecuted for violating laws of both the United States and the District of Columbia, since the laws emanate from one sovereign. Moreover, the Supreme Court and this court have long recognized that multiple punishments for essentially the same acts are unwarranted except “in instances of particular enormity, or where the public safety demanded extraordinary rigor.” Fox v. Ohio, 46 U.S. (5 How.) 410, 434, 12 L.Ed. 213 (1847), quoted with approval in Rinaldi v. United States, supra note 27, 434 U.S. at 27-28, 98 S.Ct. 81; see United States v. Knight, supra note 16, 166 U.S.App.D.C. 21, 509 F.2d at 351. One may seriously question whether this case satisfies those criteria.
Former Attorney General Rogers, in announcing the Petite policy, stated: “the mere existence of a power [to multiple punishments] . does not mean that it should necessarily be exercised.” U.S. Dep’t of Justice Press Release, supra note 25, at 2. Government prosecutors in the fifty states must show “compelling reasons” before federal punishments will be added to those of the state for the same act or acts. See note 29 supra. To the extent that this policy strikes a satisfactory balance between vindicating societal interests and avoiding unfairness to defendants, may it fairly be said that a similar policy is appropriate in the District of Columbia?
. See, e. g., United States v. Arnold, 543 F.2d 1224, 1225-26 (8th Cir. 1976), cert. denied, 429 U.S. 1051, 97 S.Ct. 765, 50 L.Ed.2d 768 (1977).
. See id. (material misrepresentations on a credit card application support inference of fraudulent intent).
. For discussion of the current high level of consumer debt and the financial inability of many consumers to repay creditors, see NEWSWEEK, Jan. 8, 1979, at 46-54; TIME, Dec. 25, 1978, at 53.
. See United States v. Maze, 414 U.S. at 402-OS, 94 S.Ct. 645.
. See id. at 400, 94 S.Ct. 645 (quoting Kann v. United States, supra, 323 U.S. at 94, 65 S.Ct. 148).
We believe it unnecessary to decide the exact point at which this scheme culminated, whether it be when the lender approved the loan or when the installment sales contract was signed. We only decide that the mailings at issue were too remote to be within the intended coverage of the mail fraud statute.
We also note that, under the Government’s theory, even the regular mailing of each installment payment could constitute a violation of the mail fraud statute. We decline to open the door to such a result, which would impose greater criminal penalties on those who repay loans than on those who intentionally default.
. We recognize that vacating these convictions will not reduce the length of appellant’s maximum sentence, since the mail fraud sentences were concurrent with the remaining sentences on the conspiracy and wire fraud counts. However, this does not bar appellate review and, when necessary, correction. See Benton v. Maryland, 395 U.S. 784, 787-91, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); United States v. Knight, 166 U.S.App.D.C. 21, 509 F.2d 354, 359 (D.C.Cir. 1974); United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114, 126 & n.14 (D.C.Cir. 1972); United States v. Hooper, 139 U.S.App.D.C. 171, 432 F.2d 604, 605 & n.3 (D.C.Cir. 1970).
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_casetyp1_7-3-1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright".
COMMISSIONER OF INTERNAL REVENUE v. LAMONT.
No. 201.
Circuit Court of Appeals, Second Circuit.
April 24, 1942.
Carolyn Agger, Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch and Michael H. Cardozo IV, Sp. Assts. Atty. Gen., all of Washington, D. C., for petitioner.
Winthrop, Stimson, Putnam & Roberts, of New York City (Percy W. Crane, of New York City, of counsel), for respondent.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
The question presented by this appeal is whether the 1935 income of two trusts created by the respondent is taxable to her under the provisions of section 22(a) of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev. Acts, page 669. The trusts were originally set up in 1928 and 1931, respectively, and each was for a term of approximately one year unless terminated earlier by the settlor’s death. The term of each trust was successively extended year by year by written extensions of approximately one year each. Upon termination the trust corpus was to revert to the settlor or, if the trust were dissolved by her death, to her estate. The trust income was to be distributed in the discretion of the trustee among specified charitable institutions and individuals. The individual beneficiaries were adult persons who were not members of the settlor’s household nor closely related to her — three of them were her first cousins — and to none of whom did she owe any legal duty of support. The trustee was a personal friend who had served her as attorney and financial adviser for many years. Both trusts were admittedly created for the purpose of minimizing the settlor’s tax burden by means of excluding from her taxable income the trust income distributed to the individual beneficiaries, or increasing the exemption for gifts to charitable institutions. By the terms of the trust deeds the trustee had complete powers of management, sale and reinvestment of the trust corpus; the settlor, however, reserved the power to withdraw any of the securities held in trust upon substituting others of equivalent value. While the trustee had absolute discretion in the matter of distributing the trust income among the named beneficiaries, the distributions made by him have in fact generally been in accord with the settlor’s wishes. Toward the end of each year he would ascertain from her what payments she had made on her own account to certain of the charitable institutions and individual beneficiaries, so that he might “supplement” what she had done, and from time to time she would ascertain what income he had distributed; but the trustee was entirely free to make distributions to any of the benficiaries without consulting her. In the year 1935 the trustee distributed the entire net income of the 1928 trust to Lamont Memorial Library. Part of the 1935 income of the 1931 trust was distributed to two of the cousins and part was retained for future distribution and was reported by the trustee as taxable to him. The commissioner determined that no tax was owing by the trustee and surcharged the respondent’s return by including in her gross income the taxable income of both trusts. This resulted in the deficiency which the Board expunged.
The Board was of the opinion that the rule of Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, was inapplicable because neither the trustee nor the beneficiaries were members of the settlor’s family group, and that the commissioner’s contention that the trusts really constituted merely assignments of income could not prevail in the face of Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465. With neither conclusion are we able to agree. Disregarding technical considerations of the law of property and trusts, as we are constrained to do under recent Supreme Court decisions, it seems clear that the extension of the trusts from January 10, 1935, to January 10, 1936, did not affect any substantial change in the settlor’s actual control over corpus or income of the securities held by the' trustee. Though lacking legal power to control his discretion, there is little doubt that she could have her way in directing the disposition of income between the possible beneficiaries. Cf. Commissioner v. Barbour, 2 Cir., 122 F.2d 165, 167. She also retained substantial control over investment by her power to substitute securities of her own choosing for those comprising the corpus of the trust. As the trust was to last but a year (or less in case of her death) it was in effect but an “anticipatory arrangement” by which she gave away the income to accrue on securities which she continued to own through retention of the reversion. See Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed 75, 131 A.L.R. 655; Harrison v. Schaffner, 312 U.S. 579, 61 S.Ct. 759, 85 L.Ed. 1055. In the case last cited, where the life beneficiary of a testamentary trust “assigned” to her children specified amounts out of the income of the trust for the year following the assignment, it was held that the amounts assigned were taxable income to the assignor. The decision did not turn on the fact that the assignees were children of the assignor, and the opinion clearly intimates, 312 U.S. at page 583, 61 S.Ct. at page 762, 85 L.Ed. 1055, that “a gift of income in a specified amount by the creation of a trust for a year” would have been equally ineffectual in avoiding the tax. In the light of the Supreme Court decisions we think the order of the Board must be reversed. It is true that in Helvering v. Achelis, 2 Cir., 112 F.2d 929, we expressed the view that by setting up a four year trust for a charitable institution the settlor had effectually parted with the income; and we so held in Commissioner v. Chamberlain, 2 Cir., 121 F.2d 765. Whether those cases can survive the recent pronouncements of the Supreme Court we need not now determine. They are at least distinguishable from the case at bar because of the shortness of the term and differences in provisions of the trust instruments now under consideration.
Order reversed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"?
A. state or local tax
B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)
C. federal tax - business income tax (includes corporate and parnership)
D. federal tax - excess profits
E. federal estate and gift tax
F. federal tax - other
G. patents
H. copyrights
I. trademarks
J. trade secrets, personal intellectual property
Answer:
|
songer_othcrim
|
B
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Plaintiff-Appellee, v. Kevin SWEENEY, Daniel Hughes and Robert Ellington, Defendants-Appellants, and UNITED STATES of America, Plaintiff-Appellant, v. Daniel M. HUGHES, et al., Defendants-Appellees.
Nos. 81-1021, 81-1057, 81-1058, 81-1051 and 81-1268.
United States Court of Appeals, Seventh Circuit.
Argued June 11, 1982.
Decided Sept. 15, 1982.
Rehearing and Rehearing In Banc Denied Jan. 26, 1983.
William D. Stiehl, Jr., Stiehl & Hess, William D. Stiehl, Sr., Amiel Cueto, Belleville, 111., for defendants-appellants.
Marsha L. Johnson, Asst. U.S. Atty., James R. Burgess, Jr., U.S. Atty., East St. Louis, 111., for plaintiff-appellee.
Before PELL and COFFEY, Circuit Judges, and EAST, Senior District Judge.
Honorable William G. East, Senior District Judge for the District of Oregon, is sitting by designation.
COFFEY, Circuit Judge.
These are appeals from the judgments of the United States District Court for the Southern District of Illinois and the United States District Court for the Southern District of Indiana. Affirmed in part, reversed in part.
This case represents the consolidated appeal of several rulings by the District Court for the Southern District of Illinois and the District Court for the Southern District of Indiana. The defendants-appellants herein, Daniel Hughes, Kevin Sweeney, and Robert Ellington, were found guilty of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 846. Appellant Sweeney was also found guilty of conspiracy to manufacture and distribute phencyclidine (PCP) and appeals his conviction on that count. Appellant Hughes also appeals from an order of the court denying his motion to suppress the evidence seized during a search of his home in Indiana. The United States Government cross appeals from an order of the district court granting defendant Hughes’ motion for return of $7,500 seized during the search of his house and from an order of the District Court for the Southern District of Indiana suppressing the introduction of the shotgun as evidence also seized in Hughes’ house during the same search. Federal law prohibits the possession of a shotgun having a barrel of less than eighteen inches in length in section 26 U.S.C. §§ 5861(d), 5871.
A Grand Jury in the Southern District of Illinois returned an indictment on August 22,1980 against sixteen individuals for their participation in two drug conspiracies, one for the manufacture and distribution of phencyclidine (PCP) and one for the manufacture and distribution of methamphetamine. Except for the three appellants herein, the other individuals charged either pleaded guilty or were granted immunity for their testimony at the trial of the remaining defendants.
Evidence presented at trial revealed that defendant-appellant Sweeney was the key or central figure in the drug manufacturing conspiracies involving both PCP and methamphetamine. During the first six months of 1975, Sweeney, after conducting a certain amount of research, decided to manufacture the illegal drug PCP. In early 1976, Sweeney began manufacturing an orange powder that he said was PCP both at his home and at his parents’ home in the country, and shortly thereafter began selling the orange powder product. At about this time he began to involve several other individuals, either as the sellers of his manufactured PCP, or as his front people to aid in the acquisition of chemicals and apparatus needed to produce the drug.
In 1977, while continuing to manufacture PCP, Sweeney decided to expand his business enterprise, started experimenting in the making of methamphetamine, and began phasing out his PCP activities due to the adverse publicity concerning the dangers of PCP and the police interest in arresting PCP manufacturers. Several of the same persons involved in the PCP conspiracy assisted Sweeney in the manufacture and distribution of the methamphetamine. In particular, appellant Ellington aided in the conspiracy by purchasing in Indiana and Texas the chemicals and apparatus necessary to manufacture both PCP and the methamphetamine. Ellington also delivered the final product to those who eventually sold the drugs. Appellant Hughes aided Sweeney in the manufacture of the drugs in Hughes’ home in southern Indiana and acted both as a seller and a distributor of the PCP and the methamphetamine.
On October 27, 1980, a trial to the jury began against five of the defendants charged with a conspiracy to manufacture and distribute PCP (Count I) and a conspiracy to manufacture and distribute methamphetamine (Count II). During trial, two of the individuals charged in the indictment pleaded guilty to the charges contained in the indictment, and later testified against the remaining defendants. Count I was dismissed against appellant Hughes. On November 19, 1980 the jury rendered a guilty verdict against appellant Sweeney as to both counts. Appellant Hughes was found guilty as to Count II and appellant Ellington was found guilty as to Count II and not guilty as to Count I.
In what can be termed a “shotgun” approach appellant Sweeney alleges a combination of twenty-six instances of error in his trial and in the Grand Jury proceedings which originally led to his indictment. Appellant Ellington alleges fifteen instances of error, many identical to the issues raised by appellant Sweeney. Appellant Hughes also raises fifteen instances of error. These issues will be addressed individually below and further facts will be developed which are necessary to the resolution of these issues.
1. Validity of Search Warrant.
In August of 1980, two Drug Enforcement Administration Agents, Hubert R. Coleman and Gregory McCoy, accompanied by a Gibson County Sheriff, went to appellant Hughes’ residence in Gibson County, Indiana to serve a federal grand jury subpoena upon Hughes. At the time these individuals arrived to serve the appellant with the subpoena, appellant Hughes was absent from the home. However, a housekeeper answered the door, and while the housekeeper was informing the DEA Agents that the appellant was not at home, one of the agents, Agent Coleman, an agent experienced in the drug field, while standing at the front door smelled an odor which the agent later identified as the odor of methylamine being processed into methamphetamine. Methylamine is one of the compounds used in the production of methamphetamine. Several of the other Drug Enforcement Agents remained at the home of the appellant Hughes and Agent Coleman proceeded to the local state court where he swore out an affidavit in support of a search warrant.
In his affidavit, Agent Coleman recited that he was a Special Agent for the DEA and had been employed as an agent for the past ten years. Agent Coleman further recited that he was the Agent In Charge of an investigation into clandestine laboratories and that during the course of this investigation it had become apparent that Daniel Hughes was a co-conspirator in a large scale conspiracy to manufacture and distribute methamphetamine. The agent stated that he had smelled the unmistakable odor oí methylamine while attempting to serve a federal subpoena on Daniel Hughes, and that due to his familiarity with the odor of chemicals used in the manufacture of methamphetamine, Agent Coleman was able to state that the unmistakable odor was known as methylamine and phenyl-two-propnone to his olfactory sense. Finally, in the affidavit Agent Coleman stated that Daniel Hughes’ son was arrested in June of 1977 in possession of two bags of methamphetamine. Based upon this affidavit, a search warrant was issued by Gibson County Magistrate John C. Hicks.
Agent Coleman returned to appellant Hughes’ residence and discovered that Hughes had returned in his absence. After Hughes was served with the search warrant and the subpoena the law enforcement officers began their search of his home. The search produced a number of items of glassware which were admitted at the trial, a shotgun with a barrel length of less than eighteen inches, and $7,000 in cash found in the appellant Hughes’ safe. The agents also seized $500 from Hughes’ wallet. The agents further found some strainers (sifters) with traces of chemicals which were later identified as methamphetamine.
Appellant Hughes filed a motion in the District Court for the Southern District of Illinois to suppress the glassware and the sifters containing the traces of methamphetamine. The Honorable William L. Beatty, District Judge, held an evidentiary hearing and denied appellant Hughes’ motion, ruling that the glassware and the sifters containing traces of methamphetamine were admissible in Hughes’ trial on the alleged conspiracy to manufacture and distribute methamphetamine. Hughes appeals from this denial of his motion to suppress.
Hughes was also indicted in the Southern District of Indiana for the unlawful possession of a shotgun with a barrel of less than eighteen inches in violation of 26 U.S.C. §§ 5861(d), 5871. Appellant Hughes also made a motion to suppress the shotgun in the Southern District of Indiana based upon the same reasoning which had been previously rejected by Judge Beatty in Illinois. The Honorable Gene E. Brooks of the District Court of the Southern District of Indiana, even though being apprised of Judge Beatty’s decision in Illinois, found the government’s search to be illegal and granted the motion to suppress on the grounds that Agent Coleman’s smelling of the odor alone was insufficient to establish probable cause and that the other aspects of the affidavit were conclusory in nature. The government cross-appeals from this order suppressing the shotgun.
After a careful examination of the affidavit, we hold that because the affidavit submitted by Agent Coleman when read in its entirety satisfactorily established Agent Coleman’s expertise in identifying the chemicals used to manufacture methamphetamine by their distinctive odor and further recited that Agent Coleman had smelled this odor at appellant Hughes’ residence, and when read together with the other information contained in the affidavit which we hold was not conclusory in nature but based upon articulated facts, the affidavit established a sufficient basis from which a detached magistrate could find probable cause for the issuance of a valid search warrant. Therefore, the decision of the District Court for the Southern District of Illinois is affirmed, and the decision of the District Court for the Southern District of Indiana suppressing the evidence obtained by Agent Coleman is reversed.
Appellant Hughes challenges the search warrant issued by the Gibson County Magistrate by challenging the affidavit which underlies the search warrant, and thereby challenges the validity of the search itself. The appellant contends that Agent Coleman’s allegation of unmistakable odor could not constitute probable cause for the issuance of a search warrant because methylamine is not listed as a controlled substance. Moreover, the appellant contends that there was a misrepresentation of material fact in the affidavit in that the agent averred that he smelled methylamine but no methylamine was found in the house and therefore the evidence should have been suppressed. Finally, appellant Hughes contends that Agent Coleman made an intentional or reckless misrepresentation of fact before the Magistrate because the agent stated he had smelled methylamine when he knew or recklessly disregarded the fact that the smell he detected was not “unmistakably” methylamine and thus the evidence should have been suppressed by the trial court.
The essential test for determining whether the detection of an odor establishes sufficient probable cause for a search warrant was set forth by the Supreme Court in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). While the detection of odors alone does not authorize a search without a warrant, “if the presence of odors is testified to before a Magistrate and he finds the affiant qualified to know the odor and [the odor] is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might well be found to be evidence of most persuasive character.” Id. at 13, 68 S.Ct. at 369. Thus, Johnson establishes a two-prong test to be applied when determining whether the detection of an odor can give rise to sufficient probable cause to issue a search warrant: (1) the affiant must be qualified to know, recognize and be able to identify the odor; and (2) the odor must be sufficiently distinctive to identify a forbidden substance. In view of the fact that the instant affidavit identified Agent Coleman as qualified to identify the substance and because the odor Agent Coleman detected was sufficiently distinctive to identify the forbidden activity of the manufacture of methamphetamine, we hold that the affidavit in the instant case was sufficient to meet the Johnson test.
As a general rule, probable cause exists when within the knowledge of the agents, certain facts and circumstances would lead a man of reasonable caution to believe that a crime is being committed or is about to be committed or that seizable property can be located at the premises in question. See generally United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965); Carrol v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). This court has recently had the opportunity to review the standards of probable cause as they relate to drug laboratory searches. In United States v. Ellery, 678 F.2d 674 (7th Cir. 1982), Judge Bauer, citing United States v. Anton, 633 F.2d 1252 (7th Cir. 1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 870, 66 L.Ed.2d 808 (1981), noted that:
Probable cause exists when it is reasonably believed that the evidence sought will aid in a particular apprehension or conviction for a particular offense and that the evidence is located in the place to be searched. Probable cause denotes more than mere suspicion, but does not require certainty. It might be said to exist if it is more likely than not that evidence of the illegal activity will be found on the premises to be searched. The agents believed probable cause existed and they submitted the facts supporting their belief to the required neutral magistrate. The magistrate agreed with the agents and issued the warrant. The magistrate’s determination is entitled to some deference from a reviewing court.
Ellery, 678 F.2d at 677.
Applying the above test of reasonableness, Agent Coleman detected and recognized an odor, peculiar and identifiable to the manufacture of methamphetamine, at the residence of Hughes which he, through his prior vast experience, reasonably associated with the manufacture of methamphetamine. Moreover, because we hold that Agent Coleman was qualified because of extensive prior experience to recognize odors associated with the manufacture of methamphetamine and, as stated in the affidavit, had been a Special Agent for the DEA for ten years and had been in charge of a clandestine laboratory investigation, the statements, observations, and knowledge and experience of Coleman clearly meet the requirements of the Johnson test. He recited in the affidavit that he had executed numerous search warrants involving clandestine operations and was intimately familiar with the odor of chemicals used in manufacturing methamphetamine. Moreover, he recited that he had attended a twelve week narcotic school and had lectured on clandestine operations to other law enforcement personnel. Therefore, we hold that Agent Coleman’s experience in the investigation and detection of clandestine laboratory operations and the recitation of his familiarity with the detection of the odors associated with the production of methamphetamine was sufficient to form the basis of probable cause for the search warrant to issue.
We also disagree with the Southern District of Indiana trial court’s suppression of the shotgun on the grounds that the smell of methylamine is not distinctive enough to distinguish between methylamine and other similar household products. The appellants contended and Judge Brooks found that methylamine does not have an unmistakable odor and that therefore there was a misrepresentation by Agent Coleman. However, according to Agent Coleman’s testimony at the suppression hearing, the agent stated that it was not necessarily the smell of the methylamine alone which gave rise to his suspicion that defendant Hughes was engaged in the manufacture of methamphetamine, but rather it was the odor which occurs with the mixing and combination of methylamine and P2P, which when having reacted together create what is known as methamphetamine. In response to questioning, Agent Coleman testified:
I was very sure about it and I was under oath at the time of the affidavit and I am under oath now and I was sure of it as I am sitting here, I smelled it many times and it is unmistakable. If I walk into a room where they were cooking speed [methamphetamine] I could tell you what was going on.... I smelled an odor that I had smelled on numerous occasions when I dealt with methamphetamine, purchased it, and I smelled an odor that I recognized to be associated with methamphetamine.
Thus, Agent Coleman was actually describing the odor of the combination of methylamine and phenyl-two-propnone (P2P) into the compound of methamphetamine when he stated in his affidavit “the odor is more specifically described as methylamine and phenyl-two-propnone (P2P).” Therefore, based upon Coleman’s recognition of the odor, his experience with and knowledge concerning clandestine drug laboratories, his description of the odor of the compound methamphetamine, coupled with his statement concerning his expertise in the area of drug odor detection, and combined with the other information contained in the affidavit, we find that there was sufficient probable cause for a search warrant to issue by the Gibson County Magistrate, and therefore we hold that the glassware and other items seized during this search were admissible at Hughes’ trial on the conspiracy charge and that Judge Brooks erred when he suppressed the shotgun which was seized during this lawful search.
2. Grand Jury Proceedings.
Appellants Sweeney and Hughes assert that the Grand Jury was misled in its deliberation by the prosecution’s omission of any admonition about the veracity of witnesses before the Grand Jury when it returned the indictment charging the defendants with a conspiracy to manufacture and distribute PCP and methamphetamine. Essentially, the appellants contend that the prosecutor should have informed the Grand Jury of the potential biases of various witnesses who testified before the Grand Jury, and further, that it was error for the prosecution to present extensive hearsay testimony to the Grand Jury, and for the Grand Jury to base its indictment upon this hearsay testimony. We find the appellant’s argument without merit because our review of relevant case law reveals that it is proper for a Grand Jury to base its indictment upon hearsay testimony and the conduct of the prosecution during the Grand Jury proceedings was not so egregious as to warrant reversal. See generally United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) and Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).
Initially, it should be noted that the appellants raise the issue of prosecutorial misconduct before the Grand Jury for the first time on appeal. When an appellant fails to attack the Grand Jury proceedings at the trial level, the appellate court will consider the issue only upon a showing of “plain error.” F.R.Crim.P. 52(b). After a careful review of the record and the relevant case law we find that the conduct of the prosecution and the introduction of hearsay evidence to the Grand Jury was within settled principles of law and therefore no plain error exists here.
“Traditionally the Grand Jury has been accorded wide latitude to inquire into violations of criminal law.... The Grand Jury’s investigative power must be broad if its public responsibility is adequately to be discharged.... The Grand Jury’s sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered.” Calandra, 414 U.S. at 343-45, 94 S.Ct. at 617-18. Indeed, it is well settled that a court will not uphold a challenge to the defendant’s indictment on the grounds that “only hearsay evidence was presented to the Grand Jury which indicted him,” Costello, 350 U.S. at 359, 76 S.Ct. 406, or that the Grand Jury was not fully informed on the credibility of witnesses. United States v. Thompson, 576 F.2d 784, 786 (9th Cir. 1978). Therefore, we hold that since it is proper to allow a Grand Jury to consider hearsay evidence and since it is also proper to allow the Grand Jury to base its indictment upon hearsay testimony no plain error existed in the Grand Jury’s proceedings and therefore no grounds for reversal exist.
3. Pre-Indictment Delay.
The appellants allege that because the PCP conspiracy related to acts which began in 1975, and because the indictment was not returned against the defendants until August 22, 1980, the appellants were prejudiced in not being able to secure and locate defense witnesses, in defending against the loss of original documents, and in reconstructing events which occurred within the past five years. The appellants assert that this pre-indictment delay should have been addressed by the trial court in a hearing. We disagree with the appellants because the appellants have not established to the trial court’s nor to this court’s satisfaction that they were prejudiced by the delay.
The indictment alleged two separate conspiracies. The first conspiracy was to manufacture PCP, beginning in March of 1975 and ending in May of 1978. The second conspiracy was to manufacture and distribute methamphetamine, beginning in May of 1978 and terminating with the date of the indictment, August 22, 1980. Drug Enforcement Administration Agents testified that they commenced their investigation in late 1979 or early 1980, while the local police authorities began their investigation in late 1978, thus revealing a combined effort of law enforcement agencies in excess of two years. Indeed, evidence adduced at trial reveals that illegal activities were being committed by the defendants as late as March, 1980.
Because both conspiracies were prosecuted within the statutory time limit of five years, 18 U.S.C. § 3282, to be granted relief based upon pre-indictment delay, the defendants must establish that they were actually prejudiced by the delay, that the delay was unnecessary, and further that there was an ulterior motive on the part of the prosecution to interfere with the defendants’ trial. See United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) and United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). While there appears to be some delay between the acts committed by the defendants and the issuance of the indictment, the delay was not the result of prosecutorial misconduct, but rather arose because of the continuing nature of the investigation, and did not prejudice the appellants as it did not result in the lack of availability of witnesses nor did it interfere with the defendants’ defense. Therefore, we hold that the pre-indictment delay in this case does not rise to the level of grounds for reversal.
4. Motion To Dismiss Counts I & II.
The appellants assert that the government did not allege all the essential elements of the crimes with which the appellants were charged. However, because of the “buckshot” nature of appellants’ allegations of error, it is difficult to ascertain and indeed the appellants have failed to identify which elements were missing, and our thorough review of the record substantiates that the government did indeed allege and prove all of the elements required to sustain a violation of 21 U.S.C. §§ 841(a)(1), 846. In light of the poorly articulated challenge to the government’s indictment and the language of the indictment itself, we disagree with the defendants’ position and affirm the findings of the trial court that the allegations contained in the indictment were sufficient to sustain the charges that the defendants conspired to manufacture, distribute and sell PCP and methamphetamine.
The essential elements of conspiracy under section 846 are the existence of an agreement between two or more individuals, with the intent to commit an offense in violation of the Controlled Substance Act. Indeed, case law reveals that “an indictment under 21 U.S.C. § 846 is sufficient if it alleges a conspiracy to distribute drugs, the time during which the conspiracy was operative and the statute allegedly violated, even if it fails to allege any specific overt act in furtherance of the conspiracy.” United States v. Bermudez, 526 F.2d 89, 94 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976).- Under this standard, the indictment in the instant case is sufficient because it specifically alleges the type and nature of the statute involved, the conspiracy and the time period of the conspiracy. Therefore we agree with the trial court’s denial of the appellants’ motion to dismiss Counts I and II of the indictment.
5. Severance.
Appellant Sweeney contends that the trial court erred when it refused to sever appellant Hughes’ trial from that of appellants Sweeney’s and Ellington’s trial. The appellant argues that the government failed to prove an adequate relationship between the activities of defendants Sweeney and Hughes and thus should not have prosecuted both as part of the same conspiracy. The appellant argues that the activities and proof which led to the conviction of defendant Hughes were independent and unrelated to the activities and proof of conspiracy upon which Sweeney’s conviction was based. Again, because a sufficient connection between the defendants was established by testimony at trial that Hughes aided Sweeney in the manufacture, distribution and ultimate sale of the methamphetamine and because the same evidence was admissible against each of the defendants, we find no merit to the defendants’ arguments.
Initially, the issue of severance is again argued for the first time on appeal, and was not made prior to trial or renewed during trial and therefore is reviewable only if plain error occurred. Fed.R.Crim.P. 52(b). No such error exists here.
Generally, where the indictment charges a conspiracy, or a crime having a principal and aider-abettors, the rule is that persons jointly indicted should be tried together. And where proof of the charges against the defendants is dependent upon the same evidence and alleged acts, as is the case when the charged relationship of the defendants is principal-aider-abettor, severance should not be granted except for the most cogent reasons.
United States v. Kahn, 381 F.2d 824 (7th Cir. 1967), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1968).
Appellant Sweeney argues that had the trial court suppressed the glassware seized during the search of Hughes’ residence, the connection between Hughes and the glassware would have been absent at trial. Sweeney takes the position that since the glassware was nonetheless used as evidence at trial, he was prejudiced by the glassware’s introduction into evidence. This argument approaches the absurd. The trial court denied the motion to suppress, and this court has affirmed. See infra part 1. Thus, the introduction of the glassware into evidence did not prejudice Sweeney’s rights.
Therefore, because there was a sufficient connection established in the testimony at trial of an interconnection between appellants Sweeney and Hughes in that they joined together and conspired to manufacture and distribute methamphetamine, and because the same evidence was admissible against all three defendants, we hold the trial court’s ruling was proper in denying the appellant’s motion for severance.
6. Production of Information.
The appellants urge that the prosecution had failed to satisfy its obligation to disclose and produce information as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, the appellants allege that the government failed to disclose information relating to the medical records of two of the original co-conspirators’ drug addiction problems. Additionally, the appellants allege that the government failed to disclose the record of money payments made to Tracy White, a paid government informer who was used during the investigation of this case, and who testified against the defendants at trial. It is the appellants’ position that they were unduly prejudiced by the government’s failure to produce this information prior to trial. We disagree.
Brady states that:
[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1960). Thus Brady mandates that the evidence must be disclosed if it is either material to the guilt or to the punishment of the accused. Evidence favorable to the accused includes material which tends to be exculpatory and material which might be used to impeach a government witness. However, the evidence referred to by the defendant does not require reversal under Brady because Brady does not require pre-trial disclosure of the materials. “The appropriate standard to be applied... is whether the disclosure came so late as to prevent the defendant from receiving a fair trial.” United States v. McPartlin, 595 F.2d 1321, 1346 (7th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979). Our review of the record fails to establish that the appellants herein have been prejudiced by the government’s failure to release evidence.
As noted above, the appellants complain that the nondisclosure of evidence relating to the drug use of several government witnesses was prejudicial in that the appellants would have used this information to impeach the witnesses. However, a review of the transcript indicates that the government witnesses and informers were extensively examined by the government and cross-examined by defendants’ counsel concerning their drug use, and as to their deals with the government. Thus, we fail to understand how the defendants can now contend that the nondisclosure prejudiced the defendants or how the defendants would have used the material for impeachment purposes during cross-examination. The defendants were not prejudiced because they were able to introduce evidence relating to the witnesses’ drug addiction and their deals with the government. Moreover, the transcript from an earlier trial was available to the defense, and this also benefitted the defendants in that they were able to utilize this transcript and conduct extensive cross-examinations of these witnesses. Indeed, during the cross-examination of Tracy White, the appellants extensively questioned White concerning his testimony in an earlier trial and the intervention by Drug Enforcement Administration Agents in a state court proceeding against White. Thus, the release of information concerning White’s prior participation with DEA Agents would not have provided the appellants with any more information concerning this witness’ drug use or credibility than would have been revealed from a review of the earlier trial transcript or what they ultimately elicited from White during cross-examination. Therefore, because the defendants were able to introduce evidence relating to these witnesses’ drug addiction and their deals with the prosecution and because the failure to release the type of evidence complained of by the defendants does not rise to such a level as to constitute a denial of due process we hold that the appellants were not denied impeachment material by the failure of the prosecution to make this information available.
7. Admissibility of Evidence.
In November of 1979, the Drug Enforcement Administration was conducting an investigation into activities involving a drug paraphernalia store and its owners Bob and Sandy Thomas. On November 21, 1979, Buckeye Scientific of Ohio, a firm engaged in the sale and distribution of chemicals (specifically those used to manufacture drugs), notified the DEA that Sandy Thomas of Mandala, a drug paraphernalia store, had ordered fifteen kilograms of methylamine, a substance used in the manufacture of methamphetamine. The DEA arranged for this order to be sent from Buckeye Scientific to their headquarters (DEA’s) in St. Louis. On November 30, 1979 a court order was issued authorizing the transfer of the methylamine into a five gallon drum containing a beeper, and further authorizing the monitoring of this beeper. An undercover agent, dressed as a United Parcel Service delivery man, delivered this five gallon drum, the property of the DEA, to Mandala on November 30, 1979. The DEA continued monitoring this beeper and on December 2, 1979 both visual surveillance and beeper transmission revealed a change in location of the drum containing the methylamine from the drug paraphernalia shop to the residence of an individual named Joe Kennedy. The DEA continued monitoring the beeper transmissions until the battery went dead, and these monitorings revealed that there were no further movements of the five gallon drum.
The appellants allege that the district court improperly refused to suppress testimony relating to the beeper located in the drum inside of the Kennedy home. The appellants assert that their fourth amendment rights to be free from unreasonable search and seizure were violated by the placement of the beeper within the five gallon drum. The appellants further assert that the government was under a duty to produce electronic surveillance records pertaining to the lawfulness of the beeper and failed to do so. We find the appellants’ position without merit because the placement of a “beeper” is governed by the fourth amendment and not by laws relating to electronic surveillance, United States v. Ellery, 678 F.2d 674 (7th Cir. 1982), and because the appellants’ fourth amendment rights were not violated.
The appellants are mistaken in their contention that a beeper is governed by 18 U.S.C. § 2510 et seq., which regulates the interception of wire and oral communications and requires the government to produce electronic surveillance records and evidence of the lawfulness of the interception of the communication. It is fairly well settled that beepers are governed by the laws of search and seizure, and not the laws concerning electronic surveillance. See, e.g. Ellery, 678 F.2d at 676, 677; United States v. Washington, 586 F.2d 1147 (7th Cir. 1978). Therefore, the defendants’ argument with respect to the placement of the “beeper” rests solely on fourth amendment grounds.
Recent Supreme Court cases have reaffirmed the fact that in order to challenge the validity of a search under the fourth amendment the aggrieved party must establish standing. The appellants herein must establish that the challenged search violated their fourth amendment rights, in that they had a legitimate expectation of privacy in the area searched. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). In the instant case, the appellants have argued neither a proprietary nor a possessory interest in the methylamine, in the five gallon drum, in the drug paraphernalia store or in the residence of Joe Kennedy where the drum was housed. Thus, upon a careful examination of the record, we hold that the appellants have failed to establish a “legitimate expectation of privacy” and lack standing to challenge the validity of the search and seizure.
8. Variance of Proof.
The appellants contend that the proof at trial demonstrated that there were actually a number of conspiracies relating to the production of methamphetamine, and not simply the one conspiracy charged in Count II of the indictment. The appellants allege that the government’s proof at trial established not one conspiracy alone between appellant Sweeney and all of his “underlings” but rather a number of separate and distinct individual conspiracies between Sweeney and others to manufacture and distribute the methylamine. Our review of the record reveals that one underlying thread of conspiracy existed between Sweeney, Hughes, Ellington and their underlings to manufacture, distribute and sell methamphetamine and therefore we hold that the proof at trial was sufficient to establish a conspiracy to manufacture, distribute and sell methamphetamine as charged in Count II of the indictment.
Contrary to the appellants’ position the government has sufficiently proved that the conduct of the co-conspirators and witnesses was interrelated and thus in actuality was a part of the one and the same overall conspiracy scheme to manufacture and distribute methamphetamine. After examining all the evidence in the light most favorable to the government, we find that one continuous conspiracy existed with appellant Sweeney as the primary manufacturer of methamphetamine and Hughes and Ellington, as well as the other appellants and co-conspirators, who were used to assist in the manufacture, the distribution as well as the ultimate sale of the methamphetamine. Therefore, we agree with the findings of the trial court that the proof admitted at trial established one conspiracy to manufacture
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
James L. WHITE, Plaintiff-Appellee, v. BAPTIST MEMORIAL HOSPITAL, Defendant-Appellant.
No. 16480.
United States Court of Appeals Sixth Circuit.
July 19, 1966.
Crawford McDonald, Memphis, Tenn., W. P. McDonald, Jr., Memphis, Tenn., on brief; McDonald, Kuhn, McDonald, Crenshaw & Smith, Memphis, Tenn., of counsel, for appellant.
Paul W. Denton, Memphis, Tenn., for appellee.
Before O’SULLIVAN and PHILLIPS, Circuit Judges, and WILSON, District Judge.
. Honorable Frank W. Wilson, United States District Judge, E.D., Tennessee, sitting by designation.
FRANK W. WILSON, District Judge.
This case involves an action for personal injury brought in the United States District Court for the Western District of Tennessee, Western Division. From a judgment for plaintiff based upon a jury verdict, the defendant has prosecuted this appeal.
The plaintiff-appellee was admitted as a patient in the defendant-appellant, Baptist Memorial Hospital, Memphis, Tennessee, on February 10, 1964, for the purpose of surgery upon an intestinal condition. On February 14, 1964, at approximately 4:15 a. m. the plaintiff fell while alone in his hospital room and sustained injuries upon which his suit was founded, including a fracture of the left hip. At the close of the plaintiff’s proof .and again at the close of all the proof the defendant moved for a directed verdict. These motions were overruled. After a jury verdict for the plaintiff, the defendant moved for judgment notwithstanding the verdict and this motion was likewise overruled.
On appeal, the defendant below asserts 1) that the trial court erred in overruling its motion for directed verdict at the close of the proof and for judgment notwithstanding the verdict on the grounds that there was no substantial evidence that the defendant failed to exercise the degree of care, skill, and diligence used by hospitals generally in that community with respect to the patient and that the defendant failed to maintain its premises in a reasonably safe condition for the patient, and 2) that the trial court erred in instructing the jury that the defendant hospital might be negligent in not providing siderails or other restraint on plaintiff’s bed to prevent him from falling therefrom, or in not assigning adequate nursing care to plaintiff to prevent him from falling from the bed or from falling while walking, therein defining negligence as failure to meet the standard of conduct of the ordinarily prudent person rather than as the failure to exercise that degree of care, skill and diligence used by hospitals generally in the community with respect to patient care.
As noted above, one issue raised upon this appeal is the standard of care imposed in Tennessee upon hospitals with respect to patient care. The Tennessee cases in this area are not readily reconcilable.
The most recent of the Tennessee cases is Thompson v. Methodist Hospital, 1963, 211 Tenn. 650, 367 S.W.2d 134, in which the Tennessee Supreme Court said:
“One of the clearest statements which this court finds as to the duty of a hospital within the premises is that stated in 41 C.J.S. § 8, page 349 under the title ‘Hospitals’. That statement is this:
‘The measure of duty of a hospital is to exercise that degree of care, skill, and diligence used by hospitals generally in that community, and required by the express or implied contract of the undertaking.’ ”
Thompson was an action wherein the plaintiffs sought to recover for injuries resulting from the infection staphylococcus aureaus on the theory that the. plaintiff infant had contracted this infection at the defendant hospital shortly after birth and had communicated the same to his parents, also plaintiffs. The Court concluded that the evidence showed that this had in fact happened but that there was no evidence of any negligence on the part of the hospital having any causal relation to the communication of the disease to plaintiffs. It was observed by the Court that staph had been a problem in hospitals for hundreds of years and might occur without negligence on the part of anyone, and that there was no evidence that the defendant’s procedures, skill and diligence were not up to the standard prevailing in other Memphis hospitals or reasonably to be expected from the average hospital. The action of the Court of Appeals setting aside the jury verdict and ordering dismissal was affirmed.
The Court in Thompson made no reference to other Tennessee cases concerning the standard of care to which a hospital is bound. Prior to Thompson no Tennessee court had spoken of a “professional” standard. Rather it had been said in a series of cases that a hospital is required to exercise such reasonable care toward a patient as his known condition may require and the extent and character of this care depends upon the circumstances of each case. This line of cases is well represented by Ford v. Vanderbilt University et al., 1955, 40 Tenn. App. 87, 289 S.W.2d 210, cert. den. There the plaintiff-patient was an asthmatic and a patient in the defendant hospital. Phenobarbital, digitalis and chloral hydrate had been prescribed for him and were given to him, generally at night, though he did receive some in the daytime. There was evidence that these drugs generally cause drowsiness and sometimes hypnosis. The plaintiff was placed in a bed three feet above a marble floor. He had fallen three times prior to the fall in which he was injured and on two of these occasions a nurse or orderly knew of the fall shortly after it happened. The other occupant of the room was present on the occasion of the fall which caused the injuries sued upon, and testified that the plaintiff was frequently “fogged up” at night and would stagger as if drunk. In reversing the action of the trial court in directing a verdict for defendants, the Middle Section of the Court of Appeals stated:
“If we concede that there is no evidence that the decision of the doctors in this case, based on their medical judgment, was contrary to the best known practice of the medical profession, we still have not entirely answered the question posed here.
“It seems to the Court that it is not entirely a medical question. Physical factors and common sense enter into a consideration of the question before the Court.”
After observing that there could be a difference of opinion as to whether the psychological hazard of restraining a patient might be outweighed by the physical necessity of preventing serious injury, especially during the patient’s irrational periods, and as to whether the hospital exercised reasonable care in putting plaintiff in a high bed above a hard floor, and whether or not the absence of an operational signal light, together with the inattention of the hospital employees after an awareness of his previous falls, evidenced a want of due care; the Court went on to review some of the Tennessee cases:
“In Spivey v. St. Thomas Hospital, 31 Tenn.App. 12, 211 S.W.2d 450, it was held:
‘Knowledge that the patient was suffering from high fever with attend- and delirium was sufficient to raise duty upon hospital to protect patient against risk of getting out of bed and harming himself.’
‘Generally a hospital is required to exercise such reasonable care toward a patient as his known condition may require, and the extent and character of this care depends upon the circumstances.’
“On page 23 of 31 Tenn.App., page 455 of 211 S.W.2d, the opinion states:q
‘In O’Quin v. Baptist Memorial Hospital, supra [184 Tenn. 570, 201 S.W. 2d 694], our Supreme Court stated the duty of such a hospital in these words: “The general rule is that a hospital is required to exercise such reasonable care toward a patient as his known condition may require, and the extent and character of this care depends upon the circumstances of each case. 41 C.J.S., Hospitals, § 8, page 349” ’.
“In James v. Turner, 184 Tenn. 563, 201 S.W.2d 691, it was held:
‘Physicians who operated sanitarium for mental and nervous diseases, and who received a patient with knowledge that he was in a highly nervous condition and had threatened suicide, owed him the duty of exercising reasonable care for his safety, the degree of care depending on the circumstances.’
‘Generally, voluntary submission to authority of a sanitarium raises an implied obligation on part of sanitarium to give patient such reasonable care and attention for his safety as his mental and physical condition require.’ ”
In both Spivey v. St. Thomas Hospital, supra, and Rural Education Association, Inc. v. Anderson, 1953, 37 Tenn.App. 209, 261 S.W.2d 151, cert. den., it was held that the circumstances “were sufficient to raise a duty upon defendant to use reasonable care to protect this patient against the danger of his getting out of bed and harming himself, and to make it a question for the jury whether defendant breached this duty.” See 37 Tenn. App. 209, at 216, 261 S.W.2d 151, at 154. In Spivey, the patient was suffering from pneumonia and was occasionally rendered delirious by a high temperature, and this was known to hospital employees. The patient in Anderson was seriously ill and suffering from mental derangement. Conversely, in Nelson v. Rural Education Association, 23 Tenn.App. 409, 134 S.W.2d 181, where the patient was on one of his numerous stays in the hospital for treatment of a condition resulting from excessive use of alcohol and to improve his physical condition preparatory to surgery and became intoxicated and assaulted an employee of the hospital who retaliated, breaking the patient’s jaw, the Court held the injury unforeseeable, although it did subscribe to the general rule that the hospital owed to its patients such reasonable care and attention for their safety as their known mental and physical condition reasonably required. See also James v. Turner, supra.
Appellant contends “that hospitals in Tennessee fall under the professional standard cannot be in doubt”, citing Thompson, and that a higher duty of “ordinary care” or “common sense” is “required by the express or implied contract of the undertaking” only where there is evidence of a known condition of the patient rendering him unable to care for himself, such as lack of consciousness, delirium or mental derangement, so that injury might be contemplated.
On the other hand, the appellee urges that the Tennessee courts have implicitly adopted a “professional-custodial” dichotomy. That is, where the professional duties of a hospital are in question, those things “the proper doing of which requires a substantial degree of special training,” the measure of care required is merely the degree of care used by other hospitals in the community generally, but where the custodial duties of the hospital are in question, maintenance of the patient in a physically safe environment and under adequate surveillance considering his condition, the measure of care is a “common sense” standard or that of ordinary care. The appellee also contends that, if the analysis advanced by appellant is correct, nevertheless, in the instant case, the circumstances were such as to raise a duty upon the appellant to go beyond the degree of care generally exercised in the hospitals in the community and use “common sense”.
Many cases have stated simply that a hospital is required to render such care to a patient as it knew, or in the exercise of reasonable care, should have known, the patient’s condition required, and that such duty is measured by the degree of care, skill, and diligence customarily exercised by hospitals in the community, without discussion of any possible conflict. See, for example, Baker v. United States, CA8, 1965, 343 F.2d 222, and Garfield Memorial Hospital v. Marshall, 92 U.S.App.D.C. 234, 204 F.2d 721, 37 A.L.R.2d 1270. On the other hand, inconsistency was recognized in Hayhurst v. Boyd Hospital, 1927, 43 Idaho 661, 254 P. 528, discussed at 124 A.L.R. 188 and 70 A.L.R.2d 378. There the negligence alleged was the act of a nurse in placing the patient near a window whereby the patient developed pneumonia. The court held the “professional” standard inapplicable since no professional skill or learning was necessary for the nurse to know that exposure was a menace to the patient’s health, and instead applied the rule that a hospital owes a duty to use such reasonable care in looking after the patient as the patient’s known condition might require.
Under our view of the evidence in this case however, it is not incumbent upon this Court to resolve the apparent conflict within the Tennessee cases upon the standard of care imposed upon hospitals in the care of patients. For the plaintiff in the ease below made no showing whatever of local hospital practices with respect to patients situated similarly to himself and the evidence when viewed in the light most favorable to the plaintiff is not sufficient to raise a jury issue upon the issue of lack of common law due care on the part of the hospital.
Mr. White entered the hospital upon February 10, 1964, and his fall occurred at approximately 4:15 a. m. on February 14. There is no evidence in the record but that he appeared during this period to be alert, lucid, and capable of earing for himself. He did testify that he was “groggy” on the evening of February 13 and that during the preceding days he slept much of the time and had little interest in his surroundings. However, he also testified that as a result of his bowel obstruction it was necessary for him to relieve himself in that regard frequently and he experienced no difficulty in getting out of bed to do so. In this regard he took care of himself and upon each occasion he would signal for a nurse to come and clean out the chair placed there for his use. He received visitors, was able to recall at least who some of them were, and conversed with them, although he may have dozed in the presence of some. The evidence showed that the plaintiff was given 100 miligrams of demerol on each day up to, but not including the 13th of February. Drs. Farrar and Strain, the only experts who testified, stated that demerol is an analgesic or narcotic pain relieving drug. Dr. Farrar stated that demerol was about as mild a narcotic as was used hypo-dermically. On the evening of the 13th at 11:30 p. m., the plaintiff was given “phenaphen with codein 3”. Both Dr. Farrar and Dr. Strain testified that phenaphen with codein was a very mild narcotic, much milder than demerol. Dr. Farrar stated that this narcotic was only slightly stronger than two or three aspirin. He further said that 100 mili-grams of demerol, the dosage which plaintiff had been receiving, was two or three times stronger than phenaphen with codein. On the evening of February 13th at 9:00 p. m. the evidence showed that the plaintiff also received 1% grains of seeanol. Dr. Strain testified that this was sodium seeanol, a mild sedative which wears off in three or four hours. There is no evidence that the plaintiff during these four days in which he received dosages of narcotics and barbiturates experienced any difficulty in moving about his room or in getting on and off his bed. None of the hospital employees testified that Mr. White was anything other than apparently able to care for himself. There was no evidence that he had fallen prior to the fall in which he was injured. Although a signal was by his bed and he was aware of this signal and frequently used it to summon a nurse to clean his chair, there is no evidence that he ever complained to any hospital employee concerning the effect of the drugs other than a request to Dr. Farrar that the narcotics be administered orally rather than intravenously.
The Court is unable to say that the plaintiff showed any circumstances giving rise to a special duty on the part of the hospital to take steps to prevent the plaintiff from injury through a lack of capacity to care for himself, for such lack of capacity does not appear from the plaintiff’s proof.
In addition to his theory that the hospital was negligent in failing to provide siderails or other restraints on his bed or in failing to assign him adequate nursing care, the plaintiff also alleged that the hospital maintained a hazardous condition in his room in that a rollaway table used to serve meals to bed ridden patients was left near the foot of his bed in a position in which it would be foreseeable that the plaintiff would trip over it and fall. The plaintiff himself testified that he always got out of the bed to use the commode chair on the righthand side of the bed, on which side the chair itself was located. Assuming this to be his practice, it would not have been foreseeable to the hospital that he would be walking in the area of the foot of his bed at any time and particularly during the night. Furthermore, there is no indication from the evidence that there was anything hazardous about the location of the table. The evidence shows that it was against the wall opposite the foot of the bed. It cannot be said that this was unreasonable with respect to the plaintiff for although 75 years old he appeared to those around him to be relatively alert, able to see and perceive objects around him and as able as any person to refrain from stumbling over ordinary objects such as room furniture. In addition there is no evidence that plaintiff actually fell over this table. At trial, the defendant introduced proof of statements made by plaintiff after the fall that he had fallen over the table, but plaintiff denied any knowledge of these statements and attempted to disprove them.
We think that the evidence relating to the allegation of maintenance of a hazardous condition was insufficient to present a question for the jury as to whether the hospital was negligent in that regard.
It might further be noted that the evidence as to how the fall occurred is highly speculative. The plaintiff himself remembers little or nothing about it, only that he had a sensation of falling, “a kind of midair feeling, no support of any kind.” He stated at the trial that he remembered nothing, other than a vague sensation of falling, from some point in time on the evening of the 13th until the afternoon of the 14th when he was returned from surgery. He testified that he did not recall being on the floor, being helped back into the bed, or any other circumstances surrounding his fall. The registered nurse, Mrs. Grace Clifton, and the student nurse, Miss Sharon Morris, were in substantial agreement that upon hearing a noise from the vicinity of the plaintiff’s room they went to his room and found him lying on the floor on the righthand side of his bed. They stated that his body was parallel to the bed, his head toward the head of the bed, and his legs, from a point about midway between knee and hip, protruding beyond the foot of the bed. The defendant in his brief states that it is immaterial whether the plaintiff fell out of the bed or fell while walking around the foot of the bed in view of the fact that the jury could have found that either had happened. With this the Court agrees. Whether he fell out of the bed or fell while walking in the room, there is no evidence of any breach of duty owed by defendant to plaintiff. The Court is of the opinion that the trial court should have directed a verdict for defendant at the close of all the proof, or, failing that, should have granted defendant’s motion for judgment n. o. v.
Reversed and dismissed.
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_casetyp2_geniss
|
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.
There are two main issues in this case. The first issue is criminal - federal offense - other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery). Your task is to determine the second issue in the case. 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".
Hugh BRYSON, Appellant, v. UNITED STATES of America, Appellee.
No. Misc. 464.
United States Court of Appeals Ninth Circuit.
June 20, 1955.
See also D.C., 16 F.R.D. 477.
Gladstein, Andersen, Leonard & Sibbett, Richard Gladstein, San Francisco, Cal., for appellant.
Lloyd H. Burke, U. S. Atty., Richard H. Foster, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.
DENMAN, Chief Judge.
Bryson, appellant, moves for a reduction of bail pending appeal from the amount of $50,000 allowed by United States District Judge Mathes acting under Rule 46(a) (2) and (c) of the Federal Rules of Criminal Procedure, 18 U.S.C.
The question before us is whether Judge Mathes abused his discretion in fixing the bail at this high amount. In determining that question we are controlled, as was Judge Mathes, by the provisions of Rule 46, the pertinent portions of which are:
“(a) (2) Upon Review. Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court. Bail may be allowed by the trial judge or by the appellate court or by any judge thereof or by the circuit justice. ******
“(c) Amount. If the defendant is admitted to bail, the amount thereof shall be such as in the judgment of the commissioner or court or judge or justice will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail and the character of the defendant.”
(A) The appeal presents a substantial question.
The Chief Judge is of the view that the indictment charged in count one that Bryson violated 18 U.S.C. § 1001 in filing on April 26, 1951 an affidavit required by Section 9(h) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 159(h), stating he then and there was not a member of the Communist party, whereas he was in fact a member of the Communist party. On this charge of membership in some unnamed one of the Communist parties he was acquitted.
Count two charged violation of the above acts by filing an affidavit on April 26, 1951 that he was not an “affiliate of the Communist party,” whereas he then was an “affiliate of the Communist party.” On this last charge he was convicted. It is obvious that the appeal may present several substantial questions. One is to the validity of the indictment with reference to the phrase “the Communist party” without the statement of which one of the various Communist parties, such as the Communist parties in the several states and the Communist party of the United Státes, was intended. Does such a phrase sufficiently inform one when making the affidavit of the character of the offense and thus comply with the requirement of precision required in drafting a criminal statute?
A Communist party well may seek to establish Marxian -socialism, without seeking to overthrow the Government by force, as did the Russian Mensheviks, the second largest party in Russia at the time of the revolution. See American Bar Association circulated Statement on Communism, pages 10 and 18.
Since there may be various Communist parties some of whom do not seek the overthrow of Government by force, must not 9(h) be construed to require that the affidavit deny membership or affiliation in a Communist party “and that he does not believe in or teach . . . the overthrow of the United States Government by any illegal or unconstitutional methods”, the latter phrase identifying the kind of affiliation in the party which he occupied ? Does he violate the Act if his affidavit is not false both as to affiliation and belief ?
We are all agreed on the question as to what the words “affiliated with” mean. The definitions of Webster’s dictionary of these words are “Intransitive: 1. To connect or associate: — followed by with, as, they affiliate with no party. 2. To be friendly, to fraternize. U. S.”
If “affiliate with” means “connect with” what are the kinds of connections intended by the statute, which a person must have in mind when he makes his affidavit? Did Congress mean that the affiant, when he made his affidavit, was to consider that he was falsely swearing to lack of affiliation, if he was merely friendly to the Communist party?
Further, assuming that the phrase “affiliated with” makes the statute one that is enforceable, there arises the question of the instructions given by the court as to the nature of affiliation, which we understood at the hearing on the motion was agreed to present a substantial question.
The judge himself certifies that there is a substantial question and our required determination agrees with his.
B. The requirement of a bond for $50,000 would keep the appellant in jail for many months, perhaps for more than a year.
The uncontradicted evidence before us is to the effect that Bryson has not the means to raise and cannot raise through his friends a bond for $50,-000. Though these facts were before Judge Mathes he nevertheless required that amount and this despite the provision of Rule 46 that he should consider “the financial ability of the defendant to give bail.”
This means that unless the bail be reduced Bryson will be confined in jail for the period of his appeal in this court and for the period in which certiorari is sought and granted or denied and if granted until the Supreme Court decision. Since this is a case of first instance and also involves a number of substantial questions, it is quite likely that certiorari may be granted. If it be granted and any of the substantial questions are resolved in favor of Bryson, he will have taken out of his life by imprisonment a period of something like a year at least. In the case of Bridges v. United States, 346 U.S. 209, 73 S.Ct. 1055, 97 L.Ed. 1557, in which bail was granted, the notice of appeal was filed in this court on July 6,1950. The case was decided here against Bridges. Certiorari was granted and the final judgment of reversal by the Supreme Court was made in June 1953. 345 U.S. 979, 73 S.Ct. 1130, 97 L.Ed. 1393. It is thus apparent that, as in that case, a similar period could expire for Bryson and nearly three years could be taken out of his life, that is, nearly three-fifths of his sentence.
As will later appear, such a result would be in complete disregard of the principle established by the Supreme Court in the case of Hudson v. Parker, 156 U.S. 277, at page 285, 15 S.Ct. 450, 453, 39 L.Ed. 424:
“The statutes of the United States have been framed upon the theory that a person accused of crime shall not, until he has been finally adjudged guilty in the court of last resort, be absolutely compelled to undergo imprisonment or punishment, but may be admitted to bail, not only after arrest and before trial, but after conviction, and pending a writ of error.”
C. Bryson’s likelihood of flight to escape prosecution is hut that of the normal case and the hail should he fixed at the usual norm in appeal cases.
The record shows that the United States Attorney prosecuting Bryson stated at the time of the fixing of bail during appeal by Judge Mathes that no question of Bryson’s likely flight was involved. The attorney then was asking for bail of not less than $30,000. This statement of the prosecutor of absence of Bryson’s likelihood to flee is supported by all the facts before Judge Mathes.
It appears that Bryson has no prior record of convictions of any offenses, felony or misdemeanor. For many years of his life he was an American merchant seaman, subject to the jurisdiction of the United States Coast Guard; at no time was he ever charged or convicted of any violation of the rules or regulations of the United States Coast Guard. In all respects whatsoever, save and except for the conviction hereinabove mentioned, Bryson’s record of conduct has been and is without blemish.
It further appears that Bryson has a home in San Francisco where he is living with his wife and four children, their ages ranging from six to one. The question of his flight to Mexico was raised and his testimony is that he has today no connections with anyone in Mexico and that he had visited Mexico but once in 1951 to see relatives of a former wife. He further testified that he had never been in Canada and has no connections there.
Coupled with this there are of record in the files of this action statements of a large number of responsible citizens of California to the effect that Bryson was a reliable and dependable person, such elements in his character being required to be considered by the last phrase of 46 (c), “the character of the defendant.”
That such a man with such chances of a reversal would flee from his home and wife and children, or flee with them, and for the rest of his life be a fugitive from justice, seems less likely than the usual case with the ordinary appellant in a criminal appeal.
The bail is ordered reduced to $20,-000.00.
. Since we are considering allowing release on bail we must determine the existence of a substantial question.
Question: What is the second general issue in the case, other than criminal - federal offense - other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)?
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_applfrom
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Appellee, v. Larry Wayne HANKINS, Appellant.
No. 90-1046.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 14, 1990.
Decided April 26, 1991.
Susan Hunt, Kansas City, Mo., for appellant.
Michael Jones, Asst. U.S. Atty., Springfield, Mo., for appellee.
Before FAGG and BEAM, Circuit Judges, and ROY, Senior District Judge.
The HONORABLE ELSIJANE TRIMBLE ROY, Senior United States District Judge for the Eastern and Western Districts of Arkansas, sitting by designation.
BEAM, Circuit Judge.
Larry Wayne Hankins was convicted of armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d) (1988); use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1); and escape from federal custody, in violation of 18 U.S.C. § 751(a). He appeals from his convictions, claiming, inter alia, (1) that there was insufficient evidence to convict him of armed bank robbery and use of a firearm, (2) that the district court erred in admitting evidence of his escape, (3) that the district court erred in failing to give certain jury instructions, and (4) that the district court erred in assessing a two-level increase under the guidelines for obstruction of justice. After filing his brief on appeal, Han-kins submitted a motion to this court for stay of the district court’s restitution order. We affirm Hankins’s convictions but remand to the district court for resentencing and consideration of the matter of restitution.
I. BACKGROUND
On Monday, April 17, 1989, the Stone County National Bank in Cape Fair, Missouri, was robbed by two people shortly after closing time (3:00 p.m.). The bodies of the robbers were completely covered with clothing, including face masks and gloves. They gained entry to the bank by shooting the locked, glass front door with a shotgun. They left a spent, twelve-gauge shotgun shell on the floor with the shattered glass of the door. Once inside, the robbers instructed a lone bank teller to empty the contents of the cash drawer. From this drawer, the robbers received $2,007, including ten twenty-dollar “bait bills” (i.e., bills from which the serial numbers had been recorded beforehand). Both entering and leaving the bank, the robbers likely walked through the broken glass of the front door.
The bank teller saw the robbers drive away in a maroon and gray pickup truck with a distinctive bumper sticker on the tailgate. Another witness later reported seeing a pickup truck matching that description driving just outside of town at about 3:00 p.m. The truck was being driven somewhat erratically by a person wearing a dark-colored ski mask. The driver was alone. The pickup truck, which had been stolen, was later located in a shed just off Peebles Road, a short distance from where it was last sighted. Peebles Road leads to a group of homes in an area known as Peebles Point, which is about four miles from the Stone County National Bank.
Witnesses at Peebles Point told investigators that since the last week of March 1989 they had observed a man staying at a mobile home owned by Jewell and Robert Brownie, a sister and brother-in-law of Hankins. (The Brownies’ trailer is less than one mile from the shed in which the stolen pickup truck was found.) The witnesses became suspicious of this man because of his schedule and activities. From a photographic lineup, they identified Billy Hankins, the appellant’s brother, as the man staying at the trailer home. They also reported that the man had been visited the weekend prior to the robbery by a white male. Larry Hankins is a white male. One witness said that Larry Hankins “resembled” the other man at the trailer. The witnesses also reported seeing a late 1970s-model Chevrolet, with a maroon body and white top, parked at the Brownies’ trailer. One witness noticed that the car had Oklahoma license plates. Larry Hankins drove a 1976 Chevrolet Malibu, with a maroon body and a white top — and he had Oklahoma license plates on the car. Hankins’s next-door neighbor in Quapaw, Oklahoma, said she did not see Hankins or his car at home the day of the robbery or the weekend prior to the robbery. (She did see Hankins’s wife and children, however, during this time period.) The next-door neighbor said she did see Hankins and his car on the morning of Tuesday, April 18, 1989— the day after the robbery.
Further investigation revealed that on April 19, 1989, the owner of the A-Able Bonding Company in Springfield, Missouri, received $150 cash from Hankins as payment for a bond debt. This payment contained two twenty-dollar bait bills taken during the bank robbery. In addition, on the same day, an attorney in Springfield, received a payment of $500 ($350 in cash and $150 by a check drawn from an account of Hankins’s mother) from Hankins and his wife, Vickey. This payment also included two bait bills. Shortly after Han-kins spent these bait bills, his Chevrolet Malibu was stopped by law enforcement officers and he was arrested. A later search of the car revealed a loaded, twelve-gauge shotgun shell in the trunk and — on the floorboard of the passenger’s side — a paper bag containing ten loaded, twelve-gauge shotgun shells. Investigators also found pieces of glass on the carpet in the front seat area in the car. Some of these pieces of glass were found to have certain characteristics in common with the glass from the front door of the bank.
On the morning of April 27, 1989, seven days after being confined in the Greene County jail in Missouri, Hankins escaped from custody. He was found later the same day and returned to custody. In July 1989, a three-count indictment was returned by a federal grand jury, charging Hankins with the robbery, use of a firearm, and escape. Prior to trial, Hankins pleaded guilty to the escape charge. A jury trial began on September 5, 1989, for the remaining two charges and on September 8, 1989, Hankins was found guilty. Because of Hankins’s escape from custody, the district court imposed a two-level increase under § 3C1.1 of the sentencing guidelines for obstruction of justice on the bank robbery charge.
II. DISCUSSION
A. Sufficiency of the Evidence
Hankins argues that there was insufficient evidence to convict him of armed bank robbery and, therefore, that the district erred in denying his motion for judgment of acquittal. Hankins contends that the bait bills were the only evidence produced by the government to prove that he was present at the bank and participated in the robbery. We disagree. The bait bills were not the only evidence against Hankins and the total evidence — although not overwhelming — was sufficient to convict.
We apply familiar principles in our review for sufficiency of evidence. The evidence is considered in the light most favorable to the government and the government is entitled to all reasonable inferences that support the jury's verdict. United States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th Cir.1989). Each element of the crime may be proven by circumstantial as well as direct evidence. Id. We do not judge the credibility of witnesses. United States v. Williams, 897 F.2d 1430, 1432 (8th Cir.1990). And the evidence need not exclude every reasonable hypothesis except guilt; the evidence is sufficient if it will convince a trier of fact that the defendant is guilty beyond a reasonable doubt. Marin-Cifuentes, 866 F.2d at 992.
The most significant evidence against Hankins is that he was in possession of four of the ten twenty-dollar bait bills within forty-eight hours of the bank robbery. A reasonable inference from this possession of recently stolen money is that Han-kins participated in the robbery. In United States v. Nabors, 762 F.2d 642 (8th Cir.1985), we noted that
the possession of property recently stolen, if not satisfactorily explained, “is ordinarily a circumstance from which a jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession not only knew it was stolen property, but also participated in some way in the theft of the property.”
Id. at 653 (quoting United States v. Johnson, 563 F.2d 936, 940-41 (8th Cir.1977), cert. denied, 434 U.S. 1021, 98 S.Ct. 746, 54 L.Ed.2d 768 (1978)). Hankins’s only plausible explanation, in his testimony at trial, for how he received the bait bills, was that on Tuesday, the day after the robbery, a friend of his brother Billy met him at a roller skating rink and gave the bills to him as payment for a “dirt bike” purchased the year before. See Trial Transcript at 411-15. The jury evidently rejected Hankins’s account.
In addition, when the evidence is viewed in the light most favorable to the government, there are other facts or circumstances that support the jury’s verdict. See United States v. Jones, 418 F.2d 818, 827 (8th Cir.1969) (appellant’s possession of bait bills stolen during an armed bank robbery the day before required corroborating evidence in order to convict the appellant of crime). Although there was some evidence that Hankins had legitimate sources of money during the month or so prior to his arrest, there was also some evidence of Hankins’s impecuniosity in the months pri- or to the robbery and at the time of his arrest (i.e., financial affidavits Hankins signed after his arrest). Trial Transcript at 438-40. Thus Hankins’s payments to the bond company and his attorney (total-ling $500 in cash) two days after the bank robbery are probative of whether he participated in the crime. See United States v. Pensinger, 549 F.2d 1150, 1152 (8th Cir.1977) (unexplained evidence of defendant’s wealth, especially when there is a showing of impecuniosity prior to the crime, is relevant and admissible); United States v. Morris, 647 F.2d 568, 572 (5th Cir.1981) (same; evidence of impecuniosity not overwhelming). Hankins told the owner of the A-Able Bonding Company that he earned the money for his payment by trimming trees for the city of Quapaw, Oklahoma. Trial Transcript at 165. Testimony from an official for the city of Quapaw, however, revealed that Hankins had never worked for the city. Id. at 242.
The jury heard testimony regarding Han-kins’s escape from custody following his arrest. Id. at 255-80. As discussed below, a reasonable jury can infer consciousness of guilt and thus guilt itself from this evidence.
An automobile dealer testified that, to the best of his recollection, when he sold the Chevrolet Malibu to Hankins (twelve days prior to the robbery), “it was pretty clean.” Id. at 24. A scientific analysis and comparison was performed with some of the pieces of glass found in Hankins’s car and some of the shattered glass from the bank’s front door. Because the pieces of glass found in the car were very small (about the size of the “dot of a period” “or smaller”), certain basic tests, such as a comparison of color and thickness, were not possible. Id. at 204-06. But some of the pieces of glass from the car were found to be consistent with the glass from the door of the bank in their refractive index and dispersion. Id. at 199.
Although none of the shotgun shells found in Hankins’s car were identical to the spent shell left at the bank (e.g., the trademarks were not the same and the shot size was apparently different), they were all twelve-gauge shells. Id. at 289-96. Han-kins had just purchased his car fourteen days prior to his arrest, yet his brother Billy’s marriage license was found in a suitcase in the trunk of the car. Id. at 188-89. Although Hankins testified that the suitcase belonged to his mother and that he had simply borrowed it without knowing that the marriage license was in it {see id. at 421-22), a jury could infer from this evidence that Hankins had recently had some contact with his brother. And, although no tangible evidence of Larry Hankins’s presence was found in the Brownies’ trailer, the fingerprints of his brother Billy — identified from a photograph as a man who was present at the trailer the weekend before the robbery— were found on some items in the trailer (e.g., a drinking glass found in the sink). Id. at 136-38, 148-49.
Moreover, reasonable inferences supporting the verdict can be drawn from the testimony of certain eyewitnesses. As explained above, a next-door neighbor of Han-kins testified that during the weekend preceding the robbery and on the day of the robbery, she did not see Hankins or his car at home. She did, however, see Hankins and his car at home on the day after the robbery Id. at 36-38. One witness at the Peebles Point area testified, after seeing a picture of Hankins’s car, that he saw “one very similar to it,” with an Oklahoma license plate, at the Brownies’ trailer on Friday, April 14, 1989. Id. at 45-46, 49-50. Another witness at Peebles Point testified that she saw a similar maroon-colored car at the Brownies’ trailer the weekend before the robbery; and — although she could not say “positively” — Hankins looked “famil.iar” or “resembled” one of two men she saw at the trailer that weekend. Id. at 54-55, 63. Although the bank teller testified that she did not remember the color of any clothing worn by the robbers nor could she discern the color of their clothing from a series of black-and-white photographs taken by the bank’s surveillance camera, these photographs do show that one of the robbers wore pants of a lighter-color. See id. at 100; Government Exhibits 20A-L. The Peebles Point area witness who testified that Larry Hankins resembled one of the men she saw at the Brownies’ trailer also testified that the man who resembled Hankins was wearing light-colored pants. Trial Transcript at 74. This woman and yet another witness at Peebles Point were also able to identify Hankins’s brother Billy from a photograph as one of the men present at the Brownies’ trailer the weekend before the robbery. Id. at 30, 53. The bank teller testified that because the robbers were covered with clothing she could not see the color of their skin, but “[tjhey sounded like white males.” Id. at 105. The bank teller also testified that she saw a maroon-colored car with an ivory-colored top — driven by a male and carrying two passengers (at least one of which was male) — “circle” the bank about ten or twenty minutes before the robbery. Id. at 89.
Altogether, the evidence is not overwhelming, but there is sufficient evidence from which a reasonable jury could convict Hankins.
B. Evidence of Escape
Next, we consider Hankins’s claim that the district court erred in allowing the admission of evidence relating to his escape from the Greene County jail. Hankins argues that evidentiary rules prohibit the admission of evidence concerning his escape and that the prejudicial effect of its admission was “accentuated” by the extensive testimony and by the lack of overwhelming evidence against him. We disagree and hold that the escape evidence was admissible.
It is widely acknowledged that evidence of flight or escape from custody is often “ ‘only marginally probative as to the ultimate issue of guilt or innocence.’ ” United States v. Myers, 550 F.2d 1036, 1049 (5th Cir.1977) (quoting United States v. Robinson, 475 F.2d 376, 384 (D.C.Cir.1973)). See also Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 415 n. 10, 9 L.Ed.2d 441 (1962) (“we have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime”). But it is also well established that such evidence is admissible and has probative value as circumstantial evidence of consciousness of guilt. An often-quoted statement from Wigmore’s treatise on evidence states that “ ‘[i]t is today universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.’ ” Myers, 550 F.2d at 1049 (quoting 2 J. Wigmore, Evidence § 276, at 111 (3d ed. 1940)) (emphasis added). It is for the jury to determine how much weight to give to such evidence. United States v. Crosby, 917 F.2d 362, 368 (8th Cir.1990).
Analytically, flight or escape from custody is generally considered an “admission by conduct.” Myers, 550 F.2d at 1049. In United States v. Peltier, 585 F.2d 314 (8th Cir.1978), cert. denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979), we explained that the admissibility and probative value of flight evidence
“depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.”
Id. at 323 (quoting Myers, 550 F.2d at 1049). A court must carefully consider whether there are a sufficient number of evidentiary manifestations to support these inferences. Id. Most of the cases on this subject, like Peltier, involve evidence of flight, usually from the scene of a crime or from an arresting officer. The present case involves evidence of escape, but we see no distinction that would warrant an analytical approach different from that which is used in flight cases. Flight and escape are similar evasive acts. See, e.g., United States v. Guerrero, 756 F.2d 1342, 1347 (9th Cir.), cert. denied, 469 U.S. 934, 105 S.Ct. 334, 83 L.Ed.2d 270 (1984) (evidence of escape met the Myers inference test); United States v. Clark, 506 F.2d 416, 418 (5th Cir.), cert. denied, 421 U.S. 967, 95 S.Ct. 1957, 44 L.Ed.2d 454 (1975) (evidence of escape from custody analyzed as evidence of flight).
The second and fourth inferences, it has been said, are often the most difficult to support, and that is true in this case as well. See Myers, 550 F.2d at 1049. But given the evidentiary manifestations in this case, the district court did not abuse its discretion in admitting evidence of Han-kins’s escape. One can confidently infer from Hankins’s behavior that he was fleeing from custody. One can also confidently infer that Hankins’s behavior was related to the armed bank robbery charges. Hankins gave a number of reasons for why he escaped (e.g., he thought he was being framed and he wanted to see his children) and these are all explanations for the jury to consider in weighing the significance of the escape evidence. But there is nothing in the record to suggest that Hankins escaped because he felt guilty about some other offense (i.e., the third inference above). Before his escape, Hankins had been made fully aware of the charges against him. Thus, “there is a sufficient basis in the evidence to warrant the inference that the flight ‘was prompted by considerations related to the issue in question.’ ” United States v. Roy, 843 F.2d 305, 310 (8th Cir.) (quoting Peltier, 585 F.2d at 323), cert. denied, 487 U.S. 1222, 108 S.Ct. 2881, 101 L.Ed.2d 916 (1988). See also Crosby, 917 F.2d at 368 (evidence of flight admissible when appellant knew of the charges against him and his scheduled trial date, yet disappeared on day of trial).
Hankins also argues that an unnecessarily extensive and prejudicial amount of evidence regarding his escape was received by the district court. Given the often marginally probative value of evidence of flight or escape and the risk of its prejudicial effect, district courts should be wary of the amount of evidence permitted on this subject and the way in which it is presented. See, e.g., Peltier, 585 F.2d at 324 (court determined that evidence was not presented in an “inflammatory manner” and, “in relation to the length of the trial, the time necessary for its presentation was brief”). The evidence of escape in Hankins’s trial was not presented in an inflammatory manner, but it is our impression that more testimony than necessary was received by the district court. We do not believe, however, that this constitutes an abuse of the district court’s discretion.
Hankins’s argument that any evidence of his escape was too much (or “especially prejudicial”) because of the less than overwhelming case against him is without merit. Evidence against a defendant, which is otherwise relevant or admissible, should not be excluded simply because the total evidence is not overwhelming. In fact, the probative value of the evidence is made more significant by the less than overwhelming case and the government’s “ ‘legitimate need for corroborative evidence.’ ” United States v. Martinez, 681 F.2d 1248, 1259 (10th Cir.1982) (quoting United States v. Jackson, 405 F.Supp. 938, 944 (E.D.N.Y. 1975)).
C. Jury Instruction On Escape
Hankins also argues that the district court erred in not accepting his proposed jury instruction on evidence of escape. There is no explanation in the record as to why the district court refused the proposed instruction, but after our review we disagree with Hankins that the district court erred. We have often noted that the district court “has ‘wide discretion in determining the appropriate jury instructions,’ and its choices of particular instructions may be reversed only for an abuse of discretion.” United States v. Wagner, 884 F.2d 1090, 1096 (8th Cir.1989) (quoting United States v. Shigemura, 682 F.2d 699, 704-05 (8th Cir.1982), cert. denied, 459 U.S. 1111, 103 S.Ct. 741, 74 L.Ed.2d 962 (1983)), cert. denied, — U.S. -, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). There was no abuse of discretion in this case.
The instruction Hankins had requested cautioned the jury on the extent to which it should infer guilt from flight. Hankins suggests in his brief that such an instruction is required by implication from the fact that in all or most of the cases in this circuit, in which the admissibility of evidence of flight was discussed on appeal, an instruction was provided by the district court. In addition, Hankins argues that in those cases this court considered the jury instruction to be an important precaution against evidence which is of marginally probative value.
The eases in this circuit, however, do not establish that an instruction on flight evidence is always required. In United States v. White, 488 F.2d 660 (8th Cir.1973), for example, we stated, “This circuit has recognized the propriety of introduction of evidence regarding flight and instructing the jury thereon. And it is generally recognized that such a procedure is proper in appropriate cases.” Id. at 662 (emphasis added). It is true that in some instances an instruction was considered by this court to be proper and helpful. See, e.g., United States v. Schepp, 746 F.2d 406, 410 (8th Cir.1984), cert. denied, 469 U.S. 1215, 105 S.Ct. 1190, 84 L.Ed.2d 336 (1985) (noting approvingly that the district court cautioned “the jury against giving undue emphasis to the flight evidence”). But in other cases involving flight evidence, the defendants opposed the instruction and on appeal we simply found no error in the district court’s decision to instruct the jury. See, e.g., United States v. Blue Thunder, 604 F.2d 550, 556 (8th Cir.), cert. denied, 444 U.S. 902, 100 S.Ct. 215, 62 L.Ed.2d 139 (1979) (finding “no error in the district court’s decision to give a limiting jury instruction on flight”). The cases, therefore, establish no rule on this point and we believe that the decision whether to instruct the jury on flight is best left to the district court. Given its marginally probative value and risk of prejudice, there may be many instances where the district court will determine that the evidence of flight or escape is best not mentioned in the instructions. The jury instruction manual developed by the district courts of this circuit is in general agreement. No model instruction on evidence of flight is provided and the committee comments state'that such an instruction is “discouraged.” Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit 4.13 at 104 (1989 rev. ed.) (committee comments). See also United States v. Robinson, 475 F.2d 376, 384 (D.C.Cir.1973) (advises that “[t]he interest of justice is perhaps best served if this matter is reserved for counsel’s argument, with little if any comment by the bench”); see also Federal Judicial Center, Pattern Criminal Jury Instructions 53 (1988) (noting in its commentary that in most cases an instruction on a defendant’s incriminating actions after the crime should not be given — “[gjenerally, argument of counsel would sufficiently explain the issues”); Committee on Federal Criminal Jury Instructions of the Seventh Circuit, Federal Criminal Jury Instructions 3.05 (1980) (“[a]n instruction on [flight] gives undue weight to a particular piece of evidence which the Committee believes should be avoided”).
D. Obstruction of Justice
Hankins’s questions whether his sentence “was imposed as a result of an incorrect application of the sentencing guidelines.” 18 U.S.C. § 3742(e)(2) (1988). Our standard of review is de novo. United States v. Werlinger, 894 F.2d 1015, 1016 (8th Cir.1990). The district court determined that Hankins’s escape from custody constituted an obstruction of the administration of justice pursuant to § 3C1.1. On this basis, the district court enhanced Han-kins’s offense level total by two. Hankins argues that the district court’s application of § 3C1.1 was an error. We disagree with Hankins’s analysis, but find that the district court did err in calculating Hankins’s sentence.
The probation officer calculated a guideline sentence range of 51-63 months in Hankins’s presentence report (criminal history category IV; offense level total 20). This was calculated as follows. Pursuant to § 2B3.1(a) of the guidelines then in effect, Hankins received an adjusted offense level of 19 for the bank robbery (i.e., a base offense level of 18, plus an additional level, pursuant to § 2B3.1(b)(l), because the loss to a financial institution is treated as at least $5000). Pursuant to § 2Pl.l(a), Han-kins received a base offense level of 13 for the offense of escape. These two offenses, the bank robbery and the escape, were not grouped as closely-related counts pursuant to § 3D1.2. According to the combined offense calculations of § 3D1.4, Hankins was assessed one unit for the bank robbery count and, because the escape offense was six offense levels less serious than the bank robbery, one-half unit for the escape count. This total of one and one-half units resulted in a one-level increase in Hankins’s highest offense level (i.e., the bank robbery count), for a combined adjusted offense level of 20.
At sentencing, the district court simply added two levels to Hankins’s combined adjusted offense level, to reach an offense level total of 22. The district court’s rationale for this adjustment was that, pursuant to § 3C1.1 of the guidelines, Hankins’s escape from custody constituted an obstruction of the administration of justice on the bank robbery count. Section 3C1.1 provides: “If the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant offense, increase the offense level by 2 levels.” U.S.S.G. § 3C1.1 (effective November 1, 1989). After this adjustment, the district court determined that Han-kins’s guideline sentencing range was 63-78 months. The district court then sentenced Hankins to 78 months for the bank robbery; 60 months for the use of a firearm, to run consecutive to the bank robbery sentence; and 60 months for the escape (the statutory maximum), to run concurrent with the bank robbery sentence.
Hankins contends that the district court erred by adding two levels pursuant to § 3C1.1. According to Hankins, Application Note 4 of that section of the guidelines states an underlying principle which the district court should have followed. Application Note 4 states:
Where the defendant is convicted for an offense covered by § 2J1.1 (Contempt), § 2J1.2 (Obstruction of Justice), § 2J1.3 (Perjury), § 2J1.8 (Bribery of Witness), or § 2J1.9 (Payment to Witness), this adjustment is not to be applied to the offense level for that offense except where a significant further obstruction occurred during the investigation or prosecution of the obstruction offense itself (<e.g., where the defendant threatened a witness during the course of the prosecution for the obstruction offense). Where the defendant is convicted both of the obstruction offense and the underlying offense, the count for the obstruction offense will be grouped with the count for the underlying offense under subsection (c) of § 3D1.2 (Groups of Closely-Related Counts). The offense level for that Group of Closely-Related Counts will be the offense level for the underlying offense increased by the 2-level adjustment specified by this section, or the offense level for the obstruction offense, whichever is greater.
U.S.S.G. § 3C1.1, Application Note 4 (effective November 1, 1989). Hankins contends that the offense of escape is analogous to the obstruction offenses listed by the Sentencing Commission in Application Note 4. Therefore, according to Hankins, a § 3C1.1 adjustment should not apply in his case. This analysis, however, is faulty: the application note does not list the offense of escape as an exception and the district court applied the enhancement to Hankins’s bank robbery offense — not to the escape offense. Thus, the district court did not violate the express language or any underlying principle of the application note.
Hankins’s conduct in escaping from custody surely warrants a § 3C1.1 enhancement to his bank robbery offense. The district court was correct in applying this guideline provision. Indeed, absent the complicating factor of Hankins’s conviction for the offense of escape, the issue would likely not be appealed. The commentary of the guidelines now in effect lists escape as conduct to which the enhancement applies. See § 3C1.1, Application Note 3(e) (“escaping or attempting to escape from custody before trial or sentencing”). Application Note 4, however, describes the function of another guideline provision which should have been considered by the district court after deciding to adjust Hankins’s offense level. Section 3D1.2 states in part,
All counts involving substantially the same harm shall be grouped together into a single Group.... Counts involve substantially the same harm within the meaning of this rule:...
(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.
U.S.S.G. § 3D1.2(c) (emphasis added). The commentary to § 3D1.2(c) states that “[tjhis provision prevents ‘double counting’ of offense behavior.” U.S.S.G. § 3D1.2, Application Note 5. The commentary also expressly contemplates Chapter Three adjustments, such as the district court applied in this case, and it does not limit the application of this guideline provision to certain offenses. See id.
The probation officer did not group Hankins’s bank robbery and escape counts, apparently because the bank robbery offense did not include an enhancement for the escape. However, when the district court adjusted Hankins’s bank robbery offense level pursuant to § 3C1.1, the escape count then embodied conduct that was treated as an adjustment to the bank robbery count. After this adjustment, the district court should have grouped the bank robbery and escape counts according to § 3D1.2 and the other applicable multiple counts provisions found in Part D of the Guidelines Manual. Grouping the bank robbery and escape offenses would produce a single Group of Closely-Related Counts and, once grouped, there is no incremental punishment for the offense of escape (of course, the bank robbery offense level has been enhanced by two levels for the obstruction of justice). According to our calculations, application of § 3D1.2(c) and § 3D1.3(a) produces a combined offense level of 21 for Hankins. See U.S.S.G. § 3D1.4, Application Note 1. Accordingly, we remand this case to the district court for resentencing consistent with this opinion.
E. Motion Regarding Restitution
Hankins was ordered by the district court to pay restitution in the amount of $1,927.00 to the Stone County National Bank. According to Hankins, the penitentiary in which he is serving his sentence takes one-half of his income each month as a restitution payment. After he filed this appeal, Hankins filed a motion with the district court to establish a more lenient restitution schedule. According to Han-kins, the district court informed him that because of his pending appeal it no longer had jurisdiction to consider the matter. Hankins then filed a motion with this court for stay of the district court’s restitution order pending his appeal. Hankins argues that the present restitution arrangement “has caused problems for [him] as he has no money left for commissary or to send to his children.” Because the district court is likely to be more familiar with Hankins’s family needs and the terms and conditions of his punishment and restitution, we remand this issue to the district court for consideration.
III. CONCLUSION
We have considered all other issues raised by Hankins and find them to be without merit. For the reasons stated, the convictions are affirmed. This case is remanded to the district court, however, for resentencing and consideration of the matter of restitution.
. Hankins mistakenly claims in his brief that "the gauge of the shotgun shells, recovered from the car, [was] different [than] the [gauge of the] shell found outside the bank.” Brief- for Appellant at 5. See also id. at 21 ("The shotgun shells recovered from [Hankins’s] car did not match either the caliber or manufacturer of the shell recovered from the bank.”). According to our review of the trial transcript and exhibits, however, this is not correct: the size of shot was apparently different, but the gauge was the same. Thus, the shotgun shells found in Han-kins’s car could be fired from the same shotgun used to fire the shell left at the bank. See Trial Transcript at 255.
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_treat
|
H
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, et al., Aluminum Association, Inc., Intervenors. NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Atchison, Topeka and Santa Fe Railway Co., et al., Institute of Scrap Iron and Steel, Inc., National Steel Corporation (79-1582) American Paper Institute, Inc. (79-1590), Intervenors.
Nos. 81-1051, 79-1393, 79-1395, 79-1582, 79-1583, 79-1590, 79-1611, 79-1620, 79-1838, 79-1839, 79-1860, 79-1970 and 79-1984.
United States Court of Appeals, District of Columbia Circuit.
Argued April 27, 1981.
Decided July 15, 1981.
Edward L. Merrigan, Washington, D. C., for petitioner.
Ellen K. Schall, Deputy Associate Gen. Counsel, I. C. C., Washington, D. C., with whom Richard A. Allen, Gen. Counsel and Robert S. Burk, Deputy Gen. Counsel, I. C. C., Washington, D. C., were on the brief, for respondent, Interstate Commerce Commission. John J. Powers, III and Kenneth P. Kolson, Attys., Dept. of Justice, Washington, D. C., entered appearances for respondent, United States of America.
Michael Boudin, Washington, D. C., with whom Timothy A. Harr, James L. Tapley, Washington, D. C., James L. Howe, III, Richmond, Va., Harry N. Babcock, Cleveland, Ohio, Richard W. Kienle, Roanoke, Va., William C. Leiper and John A. Dailey, Philadelphia, Pa., were on the brief for intervenors, Association of American Railroads, et al.
Dickson R. Loos, Washington, D. C., was on the Statement in lieu of brief, for intervenor, Aluminum Association.
Edward L. Merrigan, Washington, D. C., was on the brief for petitioner National Association of Recycling Industries, in case No. 79-1393.
David Reichert, Howard Gould and Stephen D. Strauss, Cincinnati, Ohio, were on the brief, for the petitioner Institute of Scrap Iron and Steel, Inc. in case No. 79-1395.
John F. Donelan, and John K. Maser, III, Washington, D. C., for Armco, Inc., Inland Steel Co., Republic Steel Corp. and Youngstown Sheet and Tube Co., and Engene T. Liipfert, Fritz R. Kahn and L. John Osborn, Washington, D. C., for National Steel Corp. and Paul V. Miller, Bethlehem, Pa., for Bethlehem Steel Corp., were on the joint opening brief, for Armco, Inc., Inland Steel Co., Republic Steel Corp., and Youngstown Sheet and Tube Co. (petitioners in No. 79-1582), and Bethlehem Steel Corp. and National Steel Corp. (intervenors in No. 79-1582).
John F. Donelan, John K. Maser, III, and Renee D. Rysdahl, Washington, D. C., were on the brief, for petitioner American Paper Institute, Inc., in case No. 79-1583.
Michael Boudin, Timothy A. Harr, Washington, D. C., Richard W. Kienle, Roanoke, Va., and John A. Dailey, Philadelphia, Pa., were on the brief, for petitioner Railroads in case No. 79-1590.
Dickson R. Loos, Washington, D. C., were on the brief for petitioner Aluminum Association, Inc., in case No. 79-1611.
C. Michael Loftus, William L. Slover and Donald G. Avrey, Washington, D. C., were on the brief, for petitioner Fort Howard Paper Co., in case No. 79-1620.
Robert N. Kharasch, Edward D. Green-berg, Washington, D. C., was on the brief, for petitioner Southern Paper Traffic Conference in case No. 79-1838, petitioner Southwestern Paper Traffic Conference in case No. 79-1839, petitioner Wisconsin Paper and Pulp Manufacturers Traffic Association in case No. 79-1860, and petitioner Western Paper Traffic Conference in case No. 79-1970.
Michael M. Briley, Louis E. Tosi and Stephen B. Mosier, Toledo, Ohio, were on the brief, for petitioner Glass Packing Institute in case No. 79-1984.
Robert S. Burk, Deputy Gen. Counsel and David Popowski, Atty., I. C. C., Washington, D. C., were on the brief for respondent, ICC. Kenneth G. Caplan and Frederick W. Read, III, Attys., I. C. C., Washington, D. C., also entered appearance for respondent, ICC.
Barry Grossman, John J. Powers, III and Robert Lewis Thompson, Attys., Dept. of Justice, Washington, D. C., were on the brief, for respondent Department of Justice.
Before MacKINNON and WALD, Circuit Judges, and RONALD N. DAVIES , United States Senior District Judge for the District of North Dakota.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
Opinion for the Court filed by Senior District Judge RONALD N. DAVIES.
RONALD N. DAVIES, Senior District Judge:
Presenting a matter of statutory construction, the National Association of Recycling Industries, Inc. (NARI), in its petition for review of a final report and order of the Interstate Commerce Commission (Commission) issued December 30, 1980, Ex Parte 394, challenges the Commission finding that Section 204 of the Staggers Rail Act of 1980 is ambiguous.
The Act, signed into law by the President October 14, 1980, was passed by Congress to provide guidelines under which the Commission would develop a new revenue-to-variable cost standard for certain recyclables:
TRANSPORTATION OF RECYCLABLE MATERIALS
SEC. 204. Section 10731 of title 49, United States Code, is amended by adding at the end thereof the following new subsection:
(e) Notwithstanding any other provision of this title or any other law, within 90 days after the effective date of the Staggers Rail Act of 1980, all rail carriers providing transportation subject to the jurisdiction of the Commission under sub-chapter I of chapter 105 of this title shall take all actions necessary to reduce and thereafter maintain rates for the transportation of recyclable or recycled materials, other than recyclable or recycled Iron or steel, at revenue-to-variable cost ratio levels that are equal to or less than the average revenue-to-variable cost ratio that rail carriers would be required to realize, under honest, economical, and efficient management, in order to cover total operating expenses, including depreciation and obsolescence, plus a reasonable and economic profit or return (or both) on capital employed in the business sufficient to attract and retain capital in amounts adequate to provide a sound transportation system in the United States. As long as any such rate equals or exceeds such average revenue-to-variable cost ratio established by the Commission, such rate shall not be required to bear any further rate increase. The Commission shall have jurisdiction to issue all orders necessary to enforce the requirements of this subsection.
On November 18, 1980, a notice was issued by the Commission instituting Ex Parte 394 for the purpose of establishing an average revenue-to-variable cost ratio. Also requested were comments on the Commission’s interpretation of the Act relating to rate reduction requirements:
Section 204 requires the railroads, within 90 days, to take all actions necessary to “reduce and thereafter maintain” rates for recyclables, other than scrap iron and steel, at cost ratio levels equal to or less than the defined average ratio. This wording implies that the carriers are to reduce immediately any above-average recyclable rates.
However, section 204 goes on to state that as long as a rate exceeds the average cost ratio, the rate cannot be increased. This suggests that rates do not have to be decreased immediately. This interpretation is supported by the Joint Explanatory Statement of the Committee of Conference, which states the bill would prohibit increases for rates which are currently above the threshold until such time as the rate falls below the average revenue-to-variable cost threshold.
Because of the legislative history, we are inclined toward the interpretation that immediate reductions are not required. However, we invite the public to comment upon the question.
In its final decision the Commission computed the average revenue-to-variable cost ratio to be 146% and concluded that “rates above the calculated average may not bear any further increases but need not be reduced.”
In the present highly inflationary climate, the statutory prohibition against increasing rate levels is equivalent to a substantial constant dollar rate decrease. We conclude that the Congress had inflation in mind as the mechanism by which recyclable rates would be reduced to the threshold level. Rates currently above the threshold will, over time, fall below the average revenue-to-variable cost threshold by virtue of prohibiting increases to such recyclable rates.
We think this interpretation is consistent with what we believe to be major Congressional policy objective of the Staggers Act. The new law is designed to eliminate unnecessary Federal regulation and permit railroad management to improve the revenue position of the railway system by adopting new service and pricing strategies to retain and attract traffic. Requiring rate reductions on such services as transportation of recyclables in an industry that is financially weak would be contrary to this overriding policy objective.
Two of the five Commissioners participating dissented, contending that the Act clearly required rail carriers to immediately reduce and maintain rates equal to or less than 146% and if the reductions were averaged (by commodity and/or geographic level), individual rates would be both above and below 146% and those above would not be required to bear any further increases until they fell below the established ratio.
We are fully aware of the deference due the construction placed on a statute by an agency charged with the responsibility for administering it. SEC v. Sloan, 436 U.S. 103, 98 S.Ct. 1702, 56 L.Ed.2d 148 (1978); Train v. Natural Resources Defense Council, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). However, to accord deference is not to abdicate our duty to construe the statute, for “the courts are the final authorities and ‘are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.’ ” SEC v. Sloan, supra; Ft. Pierce Utilities Authority v. United States, 606 F.2d 986 (D.C.Cir. 1979), cert. denied, 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54.
In any case concerning the interpretation of a statute the “starting point” must be the language of the statute itself, Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), and it is a fundamental principle of statutory construction that “ ‘effect must be given, if possible, to every word, clause and sentence of a statute.’ . . . so that no part will be inoperative or superfluous, void or insignificant.” In re Surface Min. Regulation Litigation, 627 F.2d 1346 (D.C.Cir.1980) quoting from 2A Sutherland, Statutory Construction § 46.06.
The first sentence of Section 204(e) is clear, explicit and mandatory. It requires all rail carriers, within 90 days after the effective date of the Act, to “take all actions necessary to reduce and thereafter maintain rates ... at revenue-to-variable cost ratio levels that are equal to or less than ...” the average ratio of 146% established by the Commission. If the Commission had so ordered and followed its past practice of requiring rate reductions to be averaged by commodity and/or geographic area, as suggested by the dissenting commissioners, the second sentence becomes equally clear and explicit. Simply stated, it merely prevents any single rate that “equals or exceeds” 146% to be increased until it has gone below that level.
The Commission’s interpretation, in contrast, gives unwarranted emphasis to the phrase “equals or exceeds” to justify a strained interpretation resulting in negation of the Congressional mandate contained in the first sentence. This construction ignores the requirement that every statute must be viewed in its entirety so that each part has a sensible and intelligent effect harmonious with the whole. It is not to be presumed that Congress intended any part of a statute to be without reasonable meaning. Payne v. Panama Canal Co., 607 F.2d 155 (5th Cir. 1979). To interpret Section 204 in the manner suggested by the Commission would render the first sentence not only superfluous but also meaningless in light of what Congress sought to achieve, an immediate reduction in rates. Nor can we countenance the Commission’s effort to justify its order by relying on what it believed to be a major Congressional policy objective of the Act. While it is true that its overall purpose is to provide the opportunity for railroads to obtain adequate earnings, it is equally true that Section 204 requires the Commission to enforce its requirements “notwithstanding any other provision of this title or any other law . . . . ” Congress deliberately chose to single out recyclable or recycled materials, other than iron or steel, for special treatment and thereby created a specific exemption from the general purpose of the Act.
While we feel that Section 204(e) is free from ambiguity, our interpretation comports with congressional purpose as evidenced in its legislative history. Its predecessor was introduced by NARI during hearings held by the Senate Committee on Commerce, Science and Transportation while considering Senate bill S. 1946, the Railroad Policy Act of 1979. NARI’s proposal, with minor changes, was incorporated into the bill:
(e) Not withstanding any other provision of this Act or any other statute, within ninety days after enactment of the Railroad Transportation Policy Act of 1979, all rail carriers subject to jurisdiction of the Interstate Commerce Commission shall take all actions necessary to reduce and thereafter maintain rates for the transportation of recyclable or recycled materials at revenue-to-variable cost ratio levels that are equal to or less than the average revenue-to-variable cost ratios initially established and thereafter published annually by the Commission pursuant to Section 102 of the Railroad Transportation Policy Act of 1979 and any such rate which equals or exceeds the average revenue-to-variable cost ratio established by the Commission as aforesaid shall not be required to bear any further rate increases. The Interstate Commerce Commission shall have jurisdiction to issue all orders necessary to enforce the requirements of this Subsection.
In its Report on the bill, Sen. Rep. 96-470, 96th Cong., 1st Session (1980), the Committee stated:
The freight rate issue has been a key in legislation attempting to encourage increased recycling as a way to mitigate the problem of energy and resource conservation. Rail freight rates are an important factor in the economics of recycling. Often the rates on these commodities equal or substantially exceed the value of the recyclable materials and thereby make it economically impossible for these materials to be marketed competitively. This is inconsistent with the national interests incorporated in and comprise the focal point of the energy resource legislation described above.
This Committee and Congress, through section 603 of the Regional Rail Reorganization Act of 1973 and section 204 of the 4R Act, issued statutory mandates to the Interstate Commerce Commission to remove all unreasonable, discriminatory freight rates for recyclables. Congress’ concern then, as it is now, was with the disparity of rates charged to ship recyclable and competing virgin materials. Unless such rate disparities were cost justified, they were to be eliminated without regard to the railroad’s general revenue needs.
The need for this additional legislation arises because the Interstate Commerce Commission initially failed to properly comply with the clear congressional mandates, with the result that its proposed actions were unanimously reversed, vacated and set aside by the United States Court of Appeals in Washington in 1978. [National Ass’n. of Recycling, etc. v. I.C.C., 190 U.S.App.D.C. 118, 585 F.2d 522 (1978), cert. denied, 440 U.S. 929, 99 S.Ct. 1266, 59 L.Ed.2d 485.] In response to the court’s remand of (sic) the Interstate Commerce Commission recently proposed to place a “cap” on freight rates for recyclables at 180 percent of variable cost. At the time this “cap” was imposed it exceeded the average revenue/variable cost level for all traffic moving by rail by 53 points, the rebuttable market dominance presumption under the Commission’s rules by 20 points and approximately 30 points above the reasonable levels that would be fixed by section 102 of S. 1946. The Committee notes that the Department of Justice, the Department of Energy and the Environmental Protection Agency have all filed briefs in opposition to the ICC’s proposed cap. It is therefore the Committee’s belief that after a full 6 years since the clear mandate to remove those economic barriers to the promotion of recyclable materials was first issued, it is now necessary to insure reasonable and nondiscriminatory rate levels on these vital commodities by statutory proscription.
The Committee’s provision is quite simple: it merely reduces the Commission’s cap on recyclables from the 180 percent revenue/variable cost ratio level to the ratio level established by section 102 of S. 1946.
At the estimated level of 140 percent to 160 percent, to be established under this section, the railroads would receive revenues that exceed their variable costs by 40 percent to 60 percent and at that level they should be able to make a profit on this recyclable traffic. At this level, neither the railroads nor any other traffic will be “subsidizing” recyclables. This traffic will be paying its full way — including all costs, plus a reasonable rate of return to the railroads.
It is the Committee’s intent that the railroads be afforded their full cost plus a reasonable return on the movement of recyclables and therefore the applicable ratio under this provision will be recomputed by the Commission each year, just as the same ratio is to be recomputed annually under section 102 of the bill. This level, however, will represent a “maximum level of reasonableness” for recyclables, and as long as rates charged for the transportation of these materials of such vital importance to the United States are at this level, there can be no further rate increases above such revenues to variable cost ratios.
It is obvious that the Committee, in adopting Section 204, expected (1) that “within 90 days ... all rail carriers . . . shall take all action necessary to reduce and thereafter maintain rates ... at revenue-to-variable cost ratio levels equal to or less than the average revenue-to-variable cost ratio . . .(2) that the ratio would thereafter be recomputed annually, and (3) that if, in any given year, a rate was equal to or exceeded the recomputed ratio, “such rate shall not be required to bear any further rate increase.”
The Senate bill, as amended, was passed by Congress as the Staggers Rail Act of 1980. The most important change in relation to Section 204 was the deletion of the requirement that the revenue-to-variable cost ratio be recomputed annually. No specific reason was given for this action by the Committee of Conference, House Conference House Report No. 96-1430, 96th Cong. 2d Sess. (1980), U.S.Code, Cong. & Admin. News, 1980, pp. 3978, 4128:
Senate bill. — The Senate bill requires that rates for recyclable or recycled materials be no higher than the average revenue to variable cost ratio of all rates for railroad transportation. Any rate which exceeds that threshold shall not be required to bear further rate increases.
House amendment. — No provision.
Conference substitute. — The Conference substitute adopts the Senate bill with certain changes. The substitute excludes recyclable or recycled iron and steel from this provision. Rates which are currently above the threshold would be prohibited from increases until such time as the rate falls below the average revenue to variable cost threshold. The standard for establishing the average revenue to variable cost threshold is the standard used in the Senate bill.
In response to the Commission’s invitation for comments on its proposed interpretation that “immediate reductions are not required,” both the House and Senate sponsors of the Act submitted letters in which they, in most emphatic terms, stated that it was the intent of Congress that immediate reductions in rates were required on recyclables and that thereafter the rates were to be maintained below the level established annually by the Commission. While post-passage remarks of legislators cannot serve to change the legislative intent of Congress expressed before the Act’s passage, Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), post hoc interpretations by the principal sponsors are entitled to some consideration. Citizens to Save Spencer Cty. v. U. S. Environ., etc., 600 F.2d 844 (D.C.Cir.1979).
The Commission realized that the revenue-to-variable cost ratio would have to be recomputed and so stated in its notice instituting proceedings in Ex Parte No. 394:
Although section 204 does not specifically direct the Commission to develop this average ratio, it does state that the Commission shall have jurisdiction to issue all orders necessary to enforce the requirements of the section. The legislative history also indicates that Congress intended the Commission to establish the standard. H.R.Rep.No.96-1430, 96th Cong., 2d Sess. 96 (1980); S.Rep.No.96-470, 96th Cong., 1st Sess. 18-19, 33-34, 51, 61-62 (1979). We anticipate periodic recalculations of the average ratio. (Emphasis added.)
The Commission’s only error was in not requiring the railroads to immediately reduce rates for the transportation of recyclable or recycled materials to the 146% level. It necessarily follows that railroads are required to immediately reduce rates and, once this has been accomplished, thereafter maintain rates at levels equal to or less than the ratio level periodically recomputed by the Commission.
We vacate the order entered in Ex Parte No. 394, maintain our continuing jurisdiction and remand for immediate action consistent with this opinion.
. In No. 79-1393, we reviewed a final report and order of the Commission, Ex Parte No. 319, and in our decision, National Ass’n. of Recycling Industries v. I. C. C., 627 F.2d 1328 (D.C. Cir.1980), modified sub nom., Consolidated Rail Corp. v. National Association of Recycling Industries, Inc., 449 U.S. 609, 101 S.Ct. 775, 66 L.Ed.2d 776 (1981), we retained jurisdiction and ordered the Commission to comply with Congressional directives by determining a level of reasonableness for rates on recyclables and to define permissible remedies for discrimination. Stressed was “the importance of expedition as mandated by Congress in section 204” of the Railroad Revitalization and Regulatory Reform Act of 1976.
Motions seeking orders directing the Commission to take affirmative action were filed by the National Association of Recycling Industries, Inc., and jointly by Armco, Inc., Inland Steel Company, Republic Steel Corporation, and Youngstown Steel & Tube Company. To expedite review, we entered an order consolidating No. 79-1393 with No. 81-1051, the instant case. After the motion was filed and our order of consolidation entered the Commission instituted further proceedings in Ex Parte 319 and urged “the parties to be as helpful as possible in their comments so that we may conclude this proceeding expeditiously.” Our consideration of the motions, pending a final report and order by the Commission, would be premature and therefore the motions are denied.
. Pub.L. 96-448, 94 Stat. 1895, codified 49 U.S.C. § 10731(e).
. The revenue-to-variable cost ratio is the ratio of the revenue generated by the commodity to a portion of the total cost of carrying the commodity, i. e., those costs that vary with the volume of traffic. Brief of Intervenors, Association of American Railroads, et al„ N. at p. 4.
. Designated, with certain exceptions, as October 1, 1980.
. See National Ass’n. of Recycling Industries v. I.C.C., supra, N. 1.
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_two_issues
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Gilbert NIETO, Petitioner-Appellant, v. George SULLIVAN, Respondent-Appellee.
No. 87-1981.
United States Court of Appeals, Tenth Circuit.
June 26, 1989.
Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.
William McEuen, Asst. Atty. Gen., Santa Fe, N.M. (Hal Stratton, Atty. Gen., Santa Fe, N.M., was also on the brief) for respondent-appellee.
Before HOLLOWAY, Chief Judge, and SEYMOUR and EBEL, Circuit Judges.
HOLLOWAY, Chief Judge.
Petitioner-appellant Gilbert Nieto appeals from the district court’s order dismissing his petition for a writ of habeas corpus and adopting the findings and recommendations of the Magistrate. Petitioner was convicted in a New Mexico state district court, following a jury trial, of the assault, battery and armed robbery of Francisco Rodriguez. We affirm.
I.
THE FACTUAL AND PROCEDURAL BACKGROUND
On the night of January 13, 1983, Francisco Rodriguez and his cousin, Mauricio Carreon, were playing video games at a local 7-Eleven store in Albuquerque. As the two left the store, they were abducted by three men and forced into Rodriguez’ truck. Rodriguez was directed to drive to an area near the Rio Grande River, while two of the attackers pointed weapons at him.
Upon their arrival at the river bank, the three men took Rodriguez’ money, class ring, Levi jacket and watch. Rodriguez and Carreon were ordered to lie down in the dirt while the three attempted to start the truck and leave. During this time, Rodriguez and Carreon jumped up and fled. Both Rodriguez and Carreon notified the police of the incident that evening and gave Albuquerque Police Officer, Jean Kurdoch, descriptions of the three assailants. Rodriguez told Officer Kurdoch that one of the attackers was a Hispanic male approximately 30 years old, with a playboy bunny tattooed on his neck and tattoos of women on his right forearm.
Officer Kurdoch, relying on Rodriguez’s description of the attacker with a playboy bunny on his neck, compiled a photo array from the identification bureau of the Albuquerque Police Department. This array included a picture of Nieto, as well as one other Hispanic male with a playboy bunny tattoo on his neck. When Rodriguez was presented with the photo array approximately two months after the incident, he identified Nieto as the oldest of the three attackers.
At trial, the state’s case consisted of only the testimony of Officer Kurdoch and Rodriguez. Neither the State nor the defense called Carreon as a witness. Nieto himself was the only defense witness. He testified that he did not know where he was on the day or night of January 13, 1983. He further testified that he was arrested on February 22, on a state charge of breaking and entering. Nieto also showed his tattoos located on his neck and right forearm to the jury. The jury returned a verdict of guilty on all counts.
In Nieto's direct appeal to the New Mexico Court of Appeals, the following issues were raised: (1) whether the prosecutor’s references to matters not introduced in evidence and to Nieto’s mug shot denied Nieto his right to due process and a fair trial; (2) whether the closure of the courtroom during Rodriguez’s testimony denied Nieto’s right to a public trial. The Court of Appeals affirmed and the New Mexico Supreme Court denied certiorari.
II.
ANALYSIS
Nieto asserts in his petition for habeas relief that he was denied a fair trial as a result of the State’s references to his mugshot and incarceration, to a non-testifying witness, and to a psychological phenomenon called “object focus.” He also contends that his right to a public trial was violated when the trial court closed the courtroom during the testimony of Rodriguez. The State responds that two of these issues have been procedurally waived, thus barring federal court consideration of these issues. Furthermore, the State argues even if the issues presented by Nieto are not barred, they are meritless.
A.
PROCEDURAL DEFAULT AND WAIVER
The State relies on Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), and argues that Nieto has procedurally defaulted and waived any claims of error as to references made by the prosecutor during the trial to Nieto’s mug shots and incarceration. The State asserts that Nieto procedurally defaulted and waived any right to claim error as to the prosecutor’s references to the phenomenon called “object focus.” We agree that the claim relating to references to Nieto’s prior incarceration was waived; we hold, however, that the claims relating to references to mug shots and “object focus” were preserved by Nieto.
The Engle case is inapposite. There the issue was whether the petitioners could proceed with their federal habeas proceeding when they failed to raise and preserve their constitutional issue in the state courts by compliance with a state procedural rule for contemporaneous objections to jury instructions. Id. at 124-125, 102 S.Ct. at 1570. Here the State relies on Engle to argue that Nieto failed to preserve the issues for federal habeas review by failing to assert contemporaneous objections during his trial. The New Mexico Court of Appeals, however, clearly addressed the merits of the constitutional issues concerning the references to Nieto’s mug shot and “object focus.” IR. doc. 11, exh. “A”, pp. 9-11. Thus, unlike the petitioners in En-gle, Nieto is not barred from obtaining federal habeas review of the issues concerning the mug shot testimony and the prosecution’s statements concerning “object focus” phenomenon.
On the other hand, the New Mexico Court of Appeals clearly stated that any error regarding the prosecutor’s reference to Nieto’s incarceration was not preserved for review. I R. doc. 11, exh. “A”, p. 10. Nieto has not offered any explanation for his counsel’s failure to object to the State’s reference to his incarceration. In fact, Nieto testified that he was incarcerated at the time of his trial and his counsel mentioned this fact during closing argument. Nieto has failed to show cause for the default and any actual prejudice from the alleged error. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); See also United States v. Hay, 527 F.2d 990, 997 (10th Cir.1975) (“[a]ny error in admitting evidence is cured by the defendant’s admission concerning the same facts”). Therefore, this issue is not subject to review through federal habeas proceedings. Harris v. Reed, 109 S.Ct. at 1042-44.
B. MUG SHOT TESTIMONY
Nieto argues that Officer Kurdoch’s references to his mug shot during her testimony on direct examination is “prejudicial on its face.” Appellant’s Brief at p. 10. Officer Kurdoch testified that mug shots are made of people who are arrested. Therefore, prejudice to Nieto arose from the jury’s consequent awareness of his prior arrest and possible past convictions.
However, in light of Nieto’s own testimony that he had been previously arrested and was presently incarcerated, and his counsel’s references to his prior arrest and mug shot during closing argument, we cannot agree that Neito was denied a fair trial or prejudiced by the officer’s mug shot testimony. See Tapia v. Rodriguez, 446 F.2d 410, 413-16 (10th Cir.1971) (defendant’s counsel’s failure to object to testimony and references to a “mug book” did not constitute ineffective assistance of counsel nor constitute fundamental error). Fish v. Cardwell, 523 F.2d 976, 977-78 (9th Cir.1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 801, 46 L.Ed.2d 654 (1976) (reference to defendant’s mug shot is not prejudicial error where defendant’s own counsel elicited the statements).
C. “OBJECT FOCUS” REFERENCE
Next, Nieto asserts the prosecutor’s statements during closing about a psychological phenomenon called “object focus” deprived him of due process. Specifically, Nieto argues the State’s reference to “object focus” was not supported by any evidence and was used to improperly distract from Rodriguez’ incorrect or incomplete discretions of tattoos worn by his attacker. The State responds that Nieto’s failure to object at trial constituted procedural default. In addition, the State argues that Nieto’s counsel disavowed any belief that an error was committed by his statements during closing that he had no objection to the “object focus” references and sought to use the phenomenon to Nieto’s advantage.
It is generally accepted that counsel during closing must confine their argument to admitted facts in evidence. However, to infer that the State’s reference to “object focus” was improper does not necessarily establish that the reference itself deprived Nieto of due process. For an improper remark to cause reversal, it must also be prejudicial; infringement of due process by such conduct must involve unfairness in the trial.
Because Nieto’s counsel disavowed any objection to the “object focus” phenomenon during his closing, and in fact used the phenomenon to Nieto’s own advantage, it would be difficult for us to find that the State’s reference was prejudicial. Cf. Mason v. United States, 719 F.2d 1485, 1489 (10th Cir.1983) (failure of defendant’s counsel to object during closing tends to indicate there was not a serious objection to the argument). Just as a defendant cannot complain of any error he invites upon himself, United States v. Hooks, 780 F.2d 1526, 1535 (10th Cir.1986), he cannot take advantage of an alleged error brought on by the State during trial and then later complain about it in a habeas proceeding. Review of the record convinces us that Nieto was not prejudiced or denied a fair trial by its use. There is no showing by Nieto that he was prejudiced by the State’s reference to “object focus” during the closing argument. See Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974).
D. REFERENCES TO MAURICIO CARREON
Another alleged victim of the January 1983 incident, Mauricio Carreon, was referred to often by the State during the course of the trial, including what his testimony would be, even though he was not called to testify. In its opening statement the State made reference to Carreon’s physical description and eventual photo identification of Nieto. In addition, during Rodriguez’ direct examination, the prosecutor questioned him about Carreon. Finally, during his closing argument the prosecutor told the jury that Carreon would not come to the trial because he was deathly afraid. It is these references to Carreon which Nieto points to as denial of a fair trial.
After the prosecutor’s opening statement, which contained comments about Carreon’s physical description of Nieto, Nieto’s counsel requested a bench conference. It was revealed that the State was not going to call Carreon as a witness. Nieto’s counsel moved for a mistrial on the basis that the State interjected a confrontation problem arising from Carreon’s alleged identification. The court denied the motion for a mistrial and reminded the jury that opening statements were not evidence.
In the court’s opening instructions the jury was advised what was to be considered as evidence and that their verdict must be based only on the evidence and testimony heard at the trial. The court admonished the jury that opening statements by counsel were not evidence. Both the prosecutor and Nieto’s counsel prefaced their openings by saying that their statements were not to be considered evidence.
We do not believe that the prosecutor’s references to Carreon during his opening remarks denied Nieto a fair trial and caused the jury to disregard the instructions to not treat the opening statements as evidence. See United States v. Humer, 542 F.2d 254, 255 (5th Cir.1976); see also Frazier v. Cupp, 394 U.S. 731, 735-37, 89 S.Ct. 1420, 1422-23, 22 L.Ed.2d 684 (1969). We also feel that since it was Nieto’s counsel who asked Officer Kurdock as to who had given her the descriptions used in developing the photo array (to which she responded that both victims gave her the description) there was not a persuasive argument for reversal.
Nieto asserts that the questions regarding Carrion during Rodriguez’ direct examination were prejudicial. Most of these questions were general in nature and provided background information about the armed robbery. These questions were relevant to the circumstances of the crime. Nieto takes particular issue with the prosecutor’s attempt to get Francisco to divulge why Carreon would not come to the trial. Nieto’s counsel made an objection to this inquiry, which was sustained by the trial court, and the question was not answered.
In our view the unanswered question concerning why Carreon would not attend trial did not have any substantial likelihood of changing the jury’s verdict, and we feel reversal is not required. United States v. Glover, 677 F.2d 57, 58 (10th Cir.1982). We note also that the court earlier instructed the jury that it could not consider any evidence to which an objection was sustained and could not speculate as to the answer of any question which the court ruled could not be answered. II R., T. 3, 12/19/83 at 22-29. The court’s introductory instructions prevented Nieto from being prejudiced by the prosecutor’s attempted inquiry. Glover, 677 F.2d at 58. Additionally, because the prosecutor’s inquiry was isolated, we do not believe the jury’s verdict was improperly influenced. United States v. Begay, 833 F.2d 900, 903 (10th Cir.1987).
During closing argument, Nieto’s counsel said “Where is Mauricio? There was another witness. Where is he?” II R., T. 7, 12/20/83 at 372. In rebuttal, the prosecutor responded:
... What about Mauricio Carreon? That’s right. Defense counsel could have subpoenaed him. I asked Francisco, “Where is Mauricio?” As I recall, he said, “He won’t come.” I know what’s happening — the man is sixteen, seventeen years old. He’s deathly afraid also, I’m sure.
II R., T. 7, 12/20/83 at 695-702. Counsel for defendant objected and the court sustained the objection. Nieto argues that while his inference regarding Carreon was proper, the State’s response was improper and highly prejudicial.
While we agree that the prosecutor’s comment that Carreon was “deathly afraid” to testify was clearly improper, we find no constitutional error on this point. Due process analysis in habeas cases focuses on the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982). Fairness of the trial is not generally determined on the basis of the prosecutor’s statements or conduct standing alone, but must be viewed in context of the whole trial. United States v. Young, 470 U.S. 1, 11-12, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985). The standard that governs in a habeas proceeding “is ‘the narrow one of due process, and not the broad exercise of supervisory power.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2472, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)).
In the context of the entire trial we cannot agree that due process was denied. First, the State’s comment about Carreon was in response to Nieto’s counsel’s statement implying that the State could have called Carreon to testify. Although this alone does not purge the impropriety of the statement, see Young, 470 U.S. at 12, 105 S.Ct. at 1044, it may affect the context in which the improper statement is viewed by the jury. Here, the prosecutor’s statement was in response to Nieto’s counsel’s remark that Carreon, an alleged victim of the incident, was not called to testify. Although the prosecutor’s comment that Car-reon was deathly afraid was clearly improper, he did not comment on any other matter such as Carreon’s physical description and photo identification of Nieto made to Officer Kurdoch during her investigation. Second, the court instructed the jury that counsel’s statements were not to be considered as evidence. Third, the trial court sustained Nieto’s objection to the prosecutor’s remark about Carreon being-deathly afraid. Fourth, after reviewing the evidence against Nieto, we do not believe the prosecutor’s improper closing statement tipped the scales in favor of the State. See Robison v. Maynard, 829 F.2d 1501, 1509 (10th Cir.1987). Thus, we hold that there was no due process violation by the remark.
E. THE CLOSURE OF THE TRIAL
Nieto argues that there was a “Closure of The Trial” during the testimony of the State’s complaining witness, Rodriguez; that the trial judge offered to close the courtroom to all but the jury, the defendant, the attorneys and the court staff; that the court’s ban deprived him of the support of his family and friends, and also encompassed the press and the general public, resulting in denial of Nieto’s right to a public trial in violation of his Sixth Amendment rights and of the New Mexico Constitution.
Immediately before commencement of the trial a hearing was conducted in the trial judge’s chambers. This was attended by the trial judge, the prosecutor, Nieto’s attorney, Rodriguez, and Juan Benavidez, a friend of Rodriguez who acted as his interpreter. The court held this hearing because the State had brought to the court’s attention the fact that Rodriguez was worried about testifying since two of the assailants were still at large. The trial judge told Rodriguez he had no choice as to whether he would testify and that he was required to do so on behalf of the State.. The judge told Rodriguez that if he did not testify he would be sent to jail and that he would get all the protection that he is entitled to after he testified.
Rodriguez was then asked by the judge whether he would testify or go to jail. Rodriguez said he guessed he would go to jail. The judge explained there were thousands of victims in the same position that he was in and that since he had been on the bench, he had not seen anyone who testified as a victim beaten up by a defendant. The judge explained that the State had decided to bring the charges.
After some further discussion about Rodriguez’ concern with identifying Nieto in a photo array, the judge repeated that Rodriguez would be required to go to jail if he did not testify. The judge stated that he “understands Francisco’s worries, but that he is not convinced that they are legitimate because retaliation doesn’t happen to most people who testify in court, and secondly, there is no guarantee that Nieto wouldn’t do anything once he got out of jail.”
After the judge instructed Rodriguez and Benavidez to confer alone in another room about whether Rodriguez would testify or go to jail, the following colloquoy took place between the judge, the prosecutor and Nieto’s attorney:
JUDGE: Well, we’ll see what again, we’re waiting for him to decide what he wants to do and of course it can be up to the State too, but if the State doesn’t dismiss the case, the court’s intention would be to send him to jail.
PROSECUTOR: Judge, I would have great difficulty with doing that.
JUDGE: Okay. Again, I would make sure he wasn’t around any of the other prisoners if that was your worry that he would be contacted or hurt.
PROSECUTOR: Well, judge could I have a few moments to discuss this with my supervisor downstairs, could I have another moment?
JUDGE: Okay, sure. And as I indicated I don’t know how long I’d keep him in jail, but I’d keep him in jail at least until tomorrow.
PROSECUTOR: Okay. Thanks judge. I’ll go down and talk to Mr. Gazowski.
After Rodriguez and Benavidez returned, the following discussion among the parties took place:
JUDGE: Okay we’re in chambers now out of the presence and hearing of the jury again and Mr. Velasquez would you ask Mr. Rodriguez what he wants to do now—
PROSECUTOR: Ah, Mr. Benavidez.
JUDGE: Oh, Mr. Benavidez, I’m sorry.
INTERPRETER:.... Let’s go ahead and do it.
JUDGE: Are you willing to testify?
INTERPRETER: I don’t have another choice.
JUDGE: Okay, let’s go ahead and do it.
JUDGE: Okay, and let me — is Mr. Bena-videz, is he going to be the translator?
NIETO’S ATTORNEY: No, we’ll have Ms. Decourt as translator judge.
JUDGE: Okay, okay. And if there is some confusion about what he’s suppose to do you’ll tell him that in no way did the court intend to indicate previously that he was to do anything but to tell the truth and to the best of his memory and that’s all I want him to do to the best of his memory. Would you tell him that. (Interpreter translates this to Rodriguez).
PROSECUTOR: And judge can we also make certain that no relatives of the defendant would be in the courtroom during the testimony of the victim?
JUDGE: Yes, we’ll make sure of that and if he wants to—
INTERPRETER: Judge, can I ask you something. These relatives aren’t going to be there, right?
JUDGE: No, his relatives will not be present when he’s testifying and if he wants he can wait in our court reporter’s office until it’s time for him to testify. We’ll show you where that is and then we’ll bring him into the courtroom through the jury room when he comes in to testify and then we’ll make sure he gets out without having to see them.
INTERPRETER: Okay.
JUDGE: Okay?
Before Nieto’s counsel began cross-examination of Rodriguez, he requested that the courtroom be reopened so that Nieto’s sisters and other relatives could attend the trial. Nieto’s counsel’s basis for the request was that Rodriguez testified on direct that he was not afraid and there was no evidence that anyone had threatened him. The court denied the request stating, “The hearing indicated Mr. Rodriguez was worried about his safety... ”, “I don’t know what he meant by afraid... I’ll keep the courtroom closed until such time as he’s finished testifying. At that time the defendant’s relatives will be at liberty to enter the courtroom.” (emphasis added). Nieto’s counsel stated that was over his objection. II R., T. 5, 12-19-83, 171-186. During cross examination, Rodriguez testified that neither Nieto nor Nie-to’s family or friends contacted him. II R., T. 6, 12-19-83, 24-26.
The Sixth Amendment guarantees that “the accused shall enjoy the right to a speedy and public trial...” The Fourteenth Amendment guarantees defendants in state prosecutions a public trial. In re Oliver, 333 U.S. 257, 266-73, 68 S.Ct. 499, 504-07, 92 L.Ed. 682 (1948). The right to a public trial belongs to the accused, not to the public. Estes v. Texas, 381 U.S. 532, 588-89, 85 S.Ct. 1628, 1662-63, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring); see also Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984).
The right to an open trial, however, may give way in certain cases to other rights or interests such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information. Waller, 467 U.S. at 45, 104 S.Ct. at 2214; see e.g. Douglas v. Wainwright (Douglas I), 714 F.2d 1532, 1544-45 (11th Cir.1983) (exclusion allowed of public other than defendant’s family and press from courtroom to protect a testifying rape victim-witness from insult and embarrassment), vacated and remanded, 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 874 (1984), reinstated, (Douglas II) 739 F.2d 531 (11th Cir.1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985); United States v. Hernandez, 608 F.2d 741, 747-48 (9th Cir.1979) (spectators excluded from courtroom during examination of witness who was in fear of his own personal safety after being threatened); United States ex rel. Orlando v. Fay, 350 F.2d 967, 971 (2nd Cir.1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1961, 16 L.Ed.2d 1021 (1966) (spectators except press and the bar excluded to maintain order in the courtroom); United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274 (2nd Cir.) cert. denied, 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975) (proper to exclude public from courtoom during testimony of a confidential informant).
A defendant’s Sixth Amendment right to a public trial and the purposes of the guarantee were analyzed by the Court in Waller, 467 U.S. at 44-47, 104 S.Ct. at 2214-15. In the context of a total closure of a suppression hearing, the Court stated that the applicable rule was that from Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984):
The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.
In Waller, the Court held that the closure of the defendant’s entire suppression hearing was improper. Id., 467 U.S. at 48, 104 S.Ct. at 2216.
Nieto argues that we should apply the “overriding interest” standard articulated in Waller to the facts here. He asserts there was a total closure during the testimony of Rodriguez, relying on the trial judge’s comment made at the pre-trial hearing that during Rodriguez’ testimony only the defendant and the jury would be present. II R., T. 1 at 126-30. We do not feel the record shows a total closure of the courtroom, with only the defendant, the jury and, of course, the judge and court staff present. The New Mexico Court of Appeals observed that the record affirmatively indicated that only Nieto’s relatives were excluded from the courtroom during Rodriguez’ testimony. I R. doc. 11, exh. “A”, p. 6. The U.S. Magistrate considered affidavits submitted by the trial prosecutor and Nieto’s trial counsel in addressing the issue of the extent of closure. In his proposed findings, the Magistrate concluded that there was no basis to disregard the New Mexico Court of Appeals finding that the closure only affected Nieto's relatives during Rodriguez’ testimony. I R. doc. 24, p. 5. The Federal District Court fully adopted the Magistrate’s proposed findings and recommendations in the habeas proceeding. I R. doc. 26.
Under the habeas corpus provisions of 28 U.S.C. § 2254, federal courts are required to afford a state court determination of a factual issue a “presumption of correctness.” Sumner v. Mata, 449 U.S. 539, 549, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981). Such a presumption favoring state court factual findings applies unless certain stated exceptions are shown to exist or are admitted. 28 U.S.C. § 2254(d)(l)-(8). A federal habeas court may disregard the state court finding if the petitioner “establish[es] by convincing evidence that the factual determination by the State court was erroneous.” Ewing v. Winans, 749 F.2d 607, 609 (10th Cir.1984). Here we agree with the Magistrate and the District Court that we should accept the finding of the New Mexico Court that the closure of the trial was partial, with exclusion of only Nieto’s relatives during the testimony of Rodriguez.
In Waller, in the context of the total closure of an entire suppression hearing of several days, the Court applied the “overriding interest” standard. We note, however, that the Ninth and Eleventh Circuits have applied a less stringent test of a “substantial reason” where partial closures are held necessary. See United States v. Sherlock, 865 F.2d 1069, 1077 (9th Cir.1989); Douglas I, 714 F.2d at 1540-41 (11th Cir.1983). We are persuaded that we should apply the less stringent “substantial reason” test in the context of this habeas case in determining whether there was a violation of the petitioner-appellant’s right to a public trial, by the partial closure ordered during the testimony of Rodriguez, when relatives of the defendant Nieto were excluded from the courtroom.
In making the determination whether there was an infringement of the public trial right, we consider the interests identified by the Supreme Court which are protected by the Sixth Amendment right to a public trial. These include the opportunity of interested spectators to observe the judicial system, the improvement of quality of testimony, the inducing of unknown witnesses to come forward with relevant testimony, insuring that the trial judge and prosecutor perform their duties responsibly, and discouraging perjury. See Waller, supra, 467 U.S. at 46, 104 S.Ct. at 2215; Gannett Co. v. DePasquale, 443 U.S. 368, 383, 99 S.Ct. 2898, 2907, 61 L.Ed.2d 608 (1979). Moreover, in In re Oliver, 333 U.S. 257, 271-72, 68 S.Ct. 499, 506-07, 92 L.Ed. 682 (1948), the Court noted that “without exception courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged....” (footnote omitted); see Aaron v. Capps, 507 F.2d 685, 687-88 (5th Cir.), cert. denied, 423 U.S. 878, 96 S.Ct. 153, 46 L.Ed.2d 112 (1975); State v. Ernest Klem, 438 N.W.2d, 798, 803 n. 5 (N.D.1989).
We are persuaded that no violation of petitioner Nieto’s Sixth Amendment right to a public trial occurred. The State trial court held a hearing just before the commencement of trial, as noted, attended by the prosecutor, Nieto’s attorney, the State’s witness Rodriguez, and his friend Benavidez who acted as his interpreter. The colloquies at the hearing are quoted at some length in the preceeding text and footnotes. See notes 11,12, and 13. There are clear references to Rodriguez’ fear or concern about his two other assailants who had not been apprehended. There was worry because Nieto knew where Rodriguez lived and “Nieto’s brothers know where he lives.” The police had advised Rodriguez to buy himself a gun.
The prosecutor requested that it be made certain that no relatives of Nieto would be present during the victim’s testimony; and then the interpreter for Rodriguez repeated the inquiry: “These relatives aren’t going to be there, right.” The judge then said the relatives would not be present while Rodriguez testified and that he could wait in the court reporter’s office until it was time to testify and then “we’ll make sure he gets out without having to see them.” Finally, the reason for the partial closure was made clear when the judge denied the request of Nieto’s counsel to admit Nieto’s sisters and other relatives during cross-examination of Rodriguez, the judge stating: “The hearing indicated Mr. Rodriguez was worried about his safety....”
We are convinced that the trial judge had “a substantial reason for the closure.” United States v. Sherlock, 865 F.2d at 1077. He conducted a hearing where the circumstances were discussed and tailored his order to what relief he felt needed, exclusion of the relatives of Nieto during Rodriguez’ testimony, with others present and no secrecy imposed on the proceedings. We hold that Nieto’s constitutional right to a public trial was not violated by the partial closure of the trial in light of the circumstances of this record.
Ill
Accordingly, the judgment of the District Court denying the writ is
AFFIRMED.
. Nieto was later convicted of this charge and was incarcerated at the time of trial.
. Although the New Mexico Court of Appeals’ opinion is ambiguous as to whether the issues complained of by Nieto were addressed on their merits or as procedually barred, we are not restrained from deciding the merits of those issues here because the state appeals court interchangeably discussed both methods of disposing the issues. Harris v. Reed, — U.S. -, 109 S.Ct. 1038, 1042-44, 103 L.Ed.2d 308 (1989).
. We have already determined that this argument is without merit. See Section II, A, supra.
. The prosecutor stated:
"... also provided to the police department at the time was a physical description by Francisco and Mauricio in terms of what these people looked like, II R., T. 3, 12/19/83 at 129-30,... and evidence will also show that not only did Francisco Rodriguez make that selection, but at a separate point, Mauricio Carreon also made that same selection of photograph number five as being the person who assaulted them from the area of Central and University." II R., T. 3, 12/19/83 at 148-53. (The tape numbers are readings from the tape counter of a Dictaphone Model No. 2250).
. These questions were asked concerning Car-reon:
Q: On that date did you have occasion to be with a friend of yours by the name of Mauricio Carreon?
Q: How did you know Mauricio?
Q: How old is Mauricio?
Q: Do you know where Mauricio is now?
Q: Why won’t Mauricio come?
Q: Mr. Rodriguez, where were you with Mauricio on January 13th?
Q: And was Mauricio also playing [the games]?
Q: Where was Mauricio Carreon during this time?
II R., T. 4, 12/19/83 at 340-55, 359 & 443.
. We note that Nieto’s counsel did not object to Officer Kurdock’s answer.
. See fn. 6, infra.
. Nieto's reliance on Hutchins v. Wainwright, 715 F.2d 512 (11th Cir.1983) is misplaced. In Hutchins, the petitioner claimed a Sixth Amendment violation arising from the prosecutor’s reference in closing argument to an eyewitness who was afraid to testify because of fear of retribution. Id. at 515. Here, Nieto claims no Confrontation Clause infringement.
. The record does not show how many relatives were present.
. We discuss only the federal constitutional claim since the assertion of violation of the State Constitution is not cognizable under 28 U.S.C. § 2254(a). Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984).
.The fear of Rodriguez was discussed in the following colloquy:
COURT: Mr. Rodriguez, have you been contacted by anybody? II R., T. 1 at 18-19.
INTERPRETER: He’s afraid because of what happened to him. Id. at 23-24.
COURT: Why won’t he testify in this matter? Id. at 25.
INTERPRETER: He’s [Rodriguez] afraid of the other ones
Question: Are there two issues in the case?
A. no
B. yes
Answer:
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songer_appel1_1_4
|
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)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
DAVID ORTIZ RADIO CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Ramon Rodriguez and Associates, Incorporated, Intervenor.
No. 90-1412.
United States Court of Appeals, District of Columbia Circuit.
Argued April 22, 1991.
Decided Aug. 20, 1991.
Robert A. DePont, Washington, D.C., for appellant.
Sue Ann Kanter, Counsel, F.C.C., with whom Robert L. Pettit, Gen. Counsel, F.C.C., and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on the brief, for appellee. Roberta L. Cook, Counsel, F.C.C., Washington, D.C., also entered an appearance, for appellee.
Christopher D. Imlay, Washington, D.C., was on the brief, for intervenor.
Before BUCKLEY, WILLIAMS and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
BUCKLEY, Circuit Judge:
During preliminary proceedings for a broadcast license, two applicants accused a third of potentially disqualifying skullduggery involving misrepresentation, concealment of material facts, and abuse of process. Without convening hearings, the Federal Communications Commission found the allegations to be without merit, and it ultimately awarded the license to the alleged wrongdoer. Because the FCC skated past the accusers’ central arguments and misapplied its own policy concerning character qualifications, we remand.
I. BackgRound
This proceeding involves the award of a construction permit for a newly authorized FM radio channel serving southwest Puer-to Rico. The first applicant, David Ortiz Radio Corporation (“Ortiz”), proposed to transmit from Cerro Guaniquilla. Ortiz had actually secured permission to use a hill about half a mile from Cerro Guaniquil-la. Upon discovering the error and the unavailability of the originally designated site, Ortiz located an alternative site and filed an amended application. The FCC found no intent to deceive and accepted the amendment. The Commission ultimately granted the license to Ramon Rodriguez & Associates, Inc. (“RRAI”).
Ortiz challenges the licensing decision on three bases: (1) In its license application, RRAI falsely certified that it had reasonable assurance of a transmitter site; (2) RRAI subsequently concealed its lack of a site from the Commission for over seven months; and (3) seeking information with which to discredit Ortiz, an RRAI principal abused the Commission’s process by posing as an FCC official.
A. Transmitter Site-related Charges
On December 8, 1982, RRAI applied for the license and, like Ortiz, listed Cerro Guaniquilla as its transmitter site. In March 1983, RRAI submitted an amendment in which it reaffirmed its intention to transmit from that site; it withdrew that amendment in July and submitted an amendment listing a different site in August. These facts led other applicants to charge RRAI with misrepresenting the status of its transmitter site in the application and with concealing its site problems from the FCC thereafter.
One of the applicants, F.M. Minority Broadcasting, filed a Petition to Enlarge the Issues in July 1987, in which it moved that the Commission consider the misrepresentation charge and determine in the light of it whether RRAI had “the minimum qualifications of character” to receive a license. Joint Appendix (“J.A.”) 172-73. RRAI responded with an affidavit from its principal shareholder, Ramon Rodriguez, dated July 21, 1987 (“July 1987 affidavit”). He explained that the application listed Cerro Guaniquilla because he had learned that it was the site selected by Ortiz, understood that it belonged to the government of Puerto Rico, and believed “to the best of my layman’s knowledge [that] if the land was government owned and available to Mr. Ortiz, it was to be available to us also.” J.A. 192.
According to the affidavit, Rodriguez applied for a land-use permit and paid a filing fee at the Puerto Rico Department of Natural Resources in November 1982. In a letter dated December 3, the agency responded that the government did not own the land. From additional inquiries, Rodriguez learned that the land actually belonged to a different government agency, the Conservation Trust of Puerto Rico; the Trust, however, denied Rodriguez’s request to erect a transmitter tower. The affidavit states that RRAI
[immediately ... moved to start looking for another site which, after many efforts [on] our part, we found in “Penones de Melones”; and [on] June 14, 1983 we received a letter from the owners telling us that they were in agreement to rent the land to us....
We then, on June 29, 1983, prepared and filed an amendment to change the original site before the Federal Communications] Commission, and it is the one that we have at this moment.
J.A. 193.
F.M. Minority termed the RRAI filing “a litany of misrepresentation and lack of candor.” J.A. 210. It noted, among other things, that RRAI had not informed the FCC of its new site on June 29,1983, as the Rodriguez affidavit indicated. Although the engineering documents bore that date, the amendment was not submitted until August 26. F.M. Minority had originally sought a hearing on whether the RRAI application contained a misrepresentation; now, in light of RRAI’s tardiness in disclosing its site problems, it amended the petition to include the issue of post-application concealment as well.
In February 1988, the AU added the misrepresentation issue but said nothing about concealment. J.A. 239. F.M. Minority submitted a “motion for clarification” that asked about the concealment issue. The motion contended that RRAI had known it had been without a site since early December 1982, but had waited eight months before apprising the FCC of the fact, and that during that period, RRAI had submitted two documents to the FCC — a March 1983 amendment and a July letter withdrawing it — that continued to list the original location as the proposed transmitter site. In light of these communications, F.M. Minority urged the FCC to investigate whether RRAI had “misrepresented, concealed or was lacking in candor,” J.A. 253, and whether RRAI had violated an FCC regulation requiring applicants to inform the Commission “as promptly as possible and in any event within 30 days” if the information in the pending application “is no longer substantially accurate and complete in all significant respects,” 47 C.F.R. § 1.65(a) (1990). On April 13, 1988, the AU denied the motion as an untimely attempt to enlarge the issues. He also noted that the facts demonstrated “no undue delay by Rodriguez in finding and amending to a new site once he discovered that the government site was unavailable.” J.A. 415.
Although the AU had refused to add the concealment issue, the misrepresentation issue remained. Rodriguez gave a deposition on April 26 and filed an affidavit on May 2 (“May 1988 affidavit”). Whereas in his earlier affidavit he had spoken of his “layman’s knowledge” about the availability of a government-owned site, he now said he had consulted an attorney. He also disclosed when he first learned there was a problem with the Guaniquilla site, and when he was advised of its unavailability: He said he had received the December 3, 1982, letter from the Department of Natural Resources disclaiming government ownership of the property on December 8— coincidentally, the day that the RRAI application was filed with the FCC in Washington — and that the Conservation Trust had denied him the site on January 10, 1983. After discovery but before the planned hearing, RRAI moved for summary judgment on the issue. In July 1988, the AU granted the motion. He said he found no evidence that RRAI had intended to deceive the FCC and noted that intent is a necessary element of misrepresentation.
Having disposed of the misrepresentation issue, and F.M. Minority having withdrawn its application, the AU proceeded with a comparison of the remaining applicants, RRAI and Ortiz. Although the AU found that both were qualified, he awarded the license to RRAI because Ortiz already owned an AM station in the area. Ramon Rodriguez, 4 F.C.C. Red. 370, 374-75 (1989).
On administrative appeal, Ortiz contested the AU’s handling of the misrepresentation and concealment issues. The Review Board affirmed both rulings on the ground that no evidence showed that RRAI had acted in bad faith. 4 F.C.C. Red. 6817, 6817-18 (Rev.Bd.1989). The Board added that RRAI’s delay in reporting its site problems might once have resulted in a comparative demerit, but the FCC had stopped considering issues of character in its comparative analyses; thus “this option is no longer available to us.” Id. at 6818 (citing Policy Regarding Character Qualifications in Broadcast Licensing, 102 F.C.C.2d 1179, 1230-32 (1986) (“Character Qualifications”), amended, 5 F.C.C. Red. 3252 (1990)). The FCC denied review without discussing the site-related issues. 5 F.C.C. Red. 4041 (1990).
B. Abuse of Process Charge
In April 1988, Ortiz filed a motion to add an abuse-of-process issue against RRAI. Of the allegations in the motion, one is preserved on appeal: Ortiz’s claim that Juan Rodriguez, a one percent owner of RRAI and the son of principal owner Ramon Rodriguez, had tried to pass himself off as an FCC inspector.
Ortiz submitted an affidavit by Carlos Ortiz Postigo, owner of Carlitos Photo Store, who gave the following account. In February 1988, Juan Rodriguez asked him to photograph the transmitter used by Ortiz’s AM station. When Rodriguez admitted that he did not have Ortiz’s permission, the photographer refused. Rodriguez later returned and said that he was from the FCC and wanted to ask about the Ortiz station and about an FM station licensed to the daughter of Ortiz Corporation president David Ortiz. The photographer demanded official identification and, when Rodriguez could not produce any, refused to answer his questions.
RRAI responded with an affidavit from Juan Rodriguez, who swore that he had never identified himself as an FCC employee, that he would never do such a thing because it would tarnish his “sound and moral image” as a singer in “the famous Andino’s Trio,” that he had in fact announced that he was representing RRAI and that he was a member of the renowned trio, and that the photographer had recognized him. J.A. 432. RRAI also submitted the affidavit of Juan Esquerdo, who said that he had accompanied Rodriguez to the photographer’s shop and that the Rodriguez affidavit was accurate. Ortiz responded with a second affidavit from the photographer, who stood by his original account and said he had never heard of Andino’s Trio.
The FCC refused to add the issue. The AU noted that no extrinsic proof had been offered and concluded that “it would serve no purpose to explore” the matter because the conflicting affidavits amounted to a standoff. J.A. 598. The Review Board affirmed. It stressed that impersonating an FCC agent was a crime, and that under the Commission’s Character Qualifications policy, such a charge would not be considered absent a conviction. 4 F.C.C. Red. at 6818. The Board also noted that Juan Rodriguez was a minor shareholder, that he denied the allegation, and that his account was supported by a third party. Id. The Commission denied review without discussing the issue. 5 F.C.C. Red. at 4041.
II. Discussion
A. Legal Standards
The Communications Act provides:
If ... a substantial and material question of fact is presented ..., [the Commission] shall formally designate the application for hearing on the ground or reasons then obtaining.... Any hearing subsequently held upon such application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate.
47 U.S.C. § 309(e) (1988). Before the FCC will hold a hearing, the “dispute must be clearly and adequately alleged, it must be factual, and it must rise to the level of a substantial and material issue.” California Public Broadcasting Forum v. FCC, 752 F.2d 670, 674 (D.C.Cir.1985); see also Citizens for Jazz on WRVR, Inc. v. FCC, 775 F.2d 392, 394-95 (D.C.Cir.1985). In reviewing the FCC’s denial of a requested hearing, we play only a “limited” role, for “the Commission’s discretion and expertise [are] paramount” in this sphere. Gencom Inc. v. FCC, 832 F.2d 171, 181 (D.C.Cir.1987) (internal quotes and citations omitted). “We will not, however, hesitate to intervene where the agency decision appears unreasonable or bears inadequate relation to the facts on which it is purportedly based.” California Public Broadcasting, 752 F.2d at 675.
B. The Misrepresentation Issue
The first issue presented was whether RRAI’s application had misrepresented the status of its transmitter site. The AU added the issue but resolved it in RRAI’s favor without a hearing, and the Review Board affirmed. Ortiz argues that this disposition is erroneous both substantively and procedurally.
1. Misrepresentation of reasonable assurance
An applicant must have “reasonable assurance” that the transmitter site specified in its application will be available. Mount Wilson FM Broadcasters, Inc. v. FCC, 884 F.2d 1462, 1463 (D.C.Cir.1989). The standard, “a liberal one,” is satisfied by
some clear indication from the landowner that he is amenable to entering into a future arrangement with the applicant for use of the property as its transmitter site, on terms to be negotiated, and that he would give notice of any change of intention.
Elijah Broadcasting Corp., 5 F.C.C. Red. 5350, 5351 (1990). Where the landowner is a government agency, its “mere willingness .,. to entertain a request for use of the land” will suffice. Alden Communications Corp., 3 F.C.C. Red. 3937, 3938 (1988). An applicant will be disqualified for misrepresentation only upon “substantial evidence of an intent to deceive.” Armando Garcia, 3 F.C.C. Red. 1065, 1067 (Rev. Bd.), rev. denied, 3 F.C.C. Red. 4767 (1988).
In affirming the ALJ’s summary decision, the Review Board explained:
[I]t appears from Rodriguez’s uncontra-dicted affidavit and sworn deposition testimony that he proceeded in good faith in specifying a site on the basis of his knowledge that Ortiz had selected the same site, on his conversations with government personnel, on advice from legal counsel, and on his payment of a filing fee. Only after these steps were taken and the application was filed did he learn of the site’s unavailability.
4 F.C.C. Red. at 6817. The Board added that absent evidence of bad faith, “no genuine issue of misrepresentation ... remained to be tried.” Id. at 6817-18.
On appeal, Ortiz notes that Rodriguez initially spoke of his “layman’s knowledge” about government permits, but later claimed that he had consulted a lawyer. Although the Board mentioned this consultation, along with the other steps Rodriguez said he had taken before filing, we have no reason to believe that the Board relied on this particular assertion in finding that RRAI had acted in good faith. The Board was certainly aware of the discrepancy between Rodriquez’s first and final representations, and apparently did not find it significant. Nor do we. As Ortiz has given us no better basis for overturning the Commission’s findings and conclusions, we leave this portion of the decision undisturbed.
2. Summary dismissal
Ortiz also faults the AU for dismissing the issue without a hearing. To defeat a motion for summary decision, a petitioner
may not rest upon mere allegations or denials but must show, by affidavit or by other materials subject to consideration by the presiding officer, that there is a genuine issue of material fact for determination at the hearing[; or] that he cannot, for good cause, present by affidavit or otherwise facts essential to justify his opposition^] or that summary decision is otherwise inappropriate.
47 C.F.R. § 1.251(b). The FCC has substantial discretion in acting on a motion for summary decision; the statutory hearing requirement “does not vouchsafe an inalienable right to cross-examination or sur-rebuttal.” Cellular Mobile Sys. v. FCC, 782 F.2d 182, 197 (D.C.Cir.1985).
Ortiz neither submitted an affidavit nor explained its failure to do so; it merely suggested that the RRAI assertions were incomplete and uncorroborated and that Rodriguez had modified his story in a suspicious fashion. This was not enough for the Review Board, which concluded that “Ortiz’s general objections and denials, unsupported by affidavit(s), ... did not undermine or raise serious question as to Rodriguez’s bona fides,” 4 F.C.C. Red. at 6817. Ortiz relies heavily on California Public Broadcasting Forum v. FCC, but the mov-ant there, unlike Ortiz, produced affidavits and documentary evidence supporting its version of the disputed facts, see 752 F.2d at 676-77. Ortiz has failed to demonstrate that the Commission behaved arbitrarily or capriciously.
C. The Concealment Issue
On the evidence before it, the FCC reasonably concluded that RRAI’s actions concerning the transmitter site were above board up to and including the time that it submitted its license application. RRAI’s post-application behavior, however, is another matter.
On December 8, 1982, the day that RRAI filed its application, it could reasonably believe that Cerro Guaniquilla would be available. But by day’s end, according to his May 1988 affidavit, Rodriguez had received the letter from the Department of Natural Resources advising him (mistakenly) that the property was privately owned. Therefore, as of that moment, RRAI had no assurance of the site’s availability. On January 10, 1983, the Conservation Trust denied RRAI the use of the property. Thus, RRAI’s belief in the site’s availability, reasonable at daybreak on December 8, became less plausible by dusk and untenable on January 10.
When he ruled that “there was no undue delay by Rodriguez in finding and amending to a new site once he discovered that the government site was unavailable,” J.A. 415, the AU apparently did -not comprehend the duration of RRAI’s delay — from January 10 to August 26, seven and one-half months. In an earlier ruling, the AU had said that RRAI “was not advised of [Cerro Guaniquilla’s] unavailability until June of 1983,” J.A. 239, which was a plausible interpretation of Rodriguez’s July 1987 affidavit. See excerpt quoted above at page 1255. The AU presumably continued to harbor this misconception when, on April 13, 1988, he denied the motion for clarification on the ground of “no undue delay.” This is understandable, as it was not until thirteen days after that ruling that Rodriguez first acknowledged, in a deposition, that the Conservation Trust had denied his request as early as “January or February” 1983, not June. (He confirmed the January 10 date the following week in his May 1988 affidavit.)
The Review Board affirmed the AU on a different rationale. After noting that the AU had found no undue delay, the Board said:
We agree with the AU that no substantial basis for a non-reporting issue was established. While Rodriguez did not report the loss of his site within thirty days (required by 47 C.F.R. § 1.65), ... no evidence was submitted to show that he acted deceptively or proceeded in bad faith either before or after he learned that his site was unavailable. In these circumstances, the failure to timely report would have at one time resulted, perhaps, in a comparative demerit, but this option is no longer available to us. See Character Qualifications, 102 F.C.C.2d 1179, 1230-1232 (1986). Absent anything other than speculation and surmise to support Ortiz’s claim that the omission was intended to deceive, we conclude that the AU’s ruling was correct.
4 F.C.C. Red. at 6818. While the Board did not indicate that it recognized the AU’s factual error, we may assume that it did, as Ortiz recited the disclosures contained in Rodriguez’s May 1988 affidavit in its pleadings. Thus, the final agency action before us appears to be this: the Review Board’s conclusion that no evidence of an intent to deceive underlies RRAI’s seven-month delay.
Section 1.65, the reporting requirement to which the Board referred, provides:
Each applicant is responsible for the continuing accuracy and completeness of information furnished in a pending application or in Commission proceedings involving a pending application_ [Whenever the information furnished in the pending application is no longer substantially accurate and complete in all significant respects, the applicant shall as promptly as possible and in any event within 30 days, unless good cause is shown, amend or request the amendment of his application so as to furnish such additional or corrected information as may be appropriate.
47 C.F.R. § 1.65(a). A section 1.65 violation is disqualifying only if evidence indicates that the applicant intended to conceal the information from the Commission, or if the reporting violations are so numerous and serious as to indicate irresponsibility. See Valley Broadcasting Co., 4 F.C.C. Red. 2611, 2618 (Rev. Bd.1989).
Had RRAI remained silent between January 10, 1983, when it was denied the use of Cerro Guaniquilla, and August 26, when it identified its new site by amendment, any charge of deliberate concealment might justly have been dismissed as mere “speculation and surmise.” During that period, however, RRAI spoke twice. On March 18, 1983, about two months after Rodriguez had learned that the site was unavailable, RRAI filed an amendment. It included an engineering statement, signed and certified as accurate by RRAI’s technical consultant, that listed Cerro Guaniquilla as the transmitter location. The amendment was signed by an RRAI partner, who thereby “certifped] that the statements in this application are true, complete, and correct to the best of my knowledge and belief, and are made in good faith.” J.A. 101. And it was accompanied by a letter from RRAI’s attorney, who declared that the amendment specified “the same transmitter site” as the application. J.A. 96. Then, on July 7,1983, RRAI informed the FCC that the March 18 amendment “is hereby withdrawn, and the application as originally filed ... is to be processed.” J.A. 116. This letter implies what the earlier communication stated— that Cerro Guaniquilla remained RRAI’s transmitter site — and it was submitted nearly six months after RRAI learned otherwise.
We believe that these two filings potentially met the Commission’s standard of “suitable evidence of an intent to conceal pertinent information from the Commission,” Valley Broadcasting, 4 F.C.C. Red. at 2618, such that disqualification under section 1.65 was possible. As we have noted before, “the fact of misrepresentation coupled with proof that the party making it had knowledge of its falsity” ordinarily suffices to demonstrate fraudulent intent. Leflore Broadcasting Co. v. FCC, 636 F.2d 454, 462 (D.C.Cir.1980).
As affirmative misstatements, moreover, the two filings also reflected on the applicant’s character. At the time, the Commission limited its interest in character to matters “clearly relevant to the licensing process.” Character Qualifications, 102 F.C.C.2d at 1181. The Commission expressed particular concern over willful misrepresentation: It “not only violates the Commission’s Rules; it also raises immediate concerns over the licensee’s ability to be truthful in any future dealings with the Commission.” Id. at 1209. Accordingly, the FCC may “treat even the most insignificant misrepresentation as disqualifying,” for “ ‘[t]he fact of concealment may be more significant than the facts concealed.’ ” Id. at 1210 & n. 77 (quoting FCC v. WOKO, Inc., 329 U.S. 223, 227, 67 S.Ct. 213, 215, 91 L.Ed. 204 (1946)). The FCC has disqualified several applicants for such offenses. See 62 Broadcasting, Inc., 4 F.C.C. Red. 1768, 1774 (Rev.Bd.1989) (citing cases), rev. denied, 5 F.C.C. Red. 830 (1990).
Thus, the RRAI amendment and the letter withdrawing it offer plausible evidence that the applicant may have willfully withheld information from the Commission, thereby raising serious question as to “its basic qualifications to be a licensee.” Character Qualifications, 102 F.C.C.2d at 1231. These filings were vigorously and repeatedly brought to the FCC’s attention — by F.M. Minority before the AU, and by Ortiz before the Review Board and the Commission — and yet, astonishingly, no FCC decisionmaker so much as mentioned them. Much as we defer to the Commission’s determination that a factual dispute is too insubstantial to require a hearing, “the determination must at least be made.” Citizens for Jazz, 775 F.2d at 398 (emphasis in original). As the FCC evaded the requisite determination by ignoring important arguments and evidence, its decision in this regard is arbitrary and capricious, see NRDC v. EPA, 822 F.2d 104, 111 (D.C.Cir.1987), and must be remanded.
D. The Abuse of Process Issue
Here we confront another question of character: the allegation that an RRAI co-owner, Juan Rodriguez, impersonated an FCC inspector. The Review Board affirmed the AU’s refusal to add this issue. The Board stressed that,
insofar as Ortiz contends that the alleged impersonation would constitute a criminal violation of 18 U.S.C. 912, we observe that Ortiz has not even asserted that this matter was the subject of a criminal complaint, investigation, indictment, trial, or judgment of any sort, let alone a conviction. In pertinent part, it is the Commission’s general policy not to take cognizance of misconduct involving alleged criminal activity unless it is finally adjudicated by a court.
4 F.C.C. Red. at 6818.
Once again, the Review Board misconstrued the allegation and as a consequence misapplied FCC policy. It is true that the Commission “will not take cognizance of non-FCC misconduct involving criminally fraudulent misrepresentations ... unless it is adjudicated.” Character Qualifications, 102 F.C.C.2d at 1205 (emphasis added). It is also true, however, that “such misconduct as ... harassment of opposing parties, which threatens the integrity of the Commission’s licensing processes, will ... continue to be considered as bearing on character”; the FCC terms this misbehavior “abuse of process.” Id. at 1211. Ortiz, while mentioning the possibility of criminal liability, argued that the impersonation amounted to “an abuse of the Commission’s process ... intended to impede, frustrate or obstruct the prosecution of the Ortiz application.” J.A. 671. Nevertheless, the Board treated the accusation as alleging criminal conduct unrelated to the licensing process.
In addition to the fact that the impersonation charge had not been criminally adjudicated, the Review Board cited two other points in support of its ruling. First, it noted that the allegation concerned “a very minor Rodriguez principal (Juan Carlos Rodriguez Maldonado, merely a 1% equity owner of the applicant).” 4 F.C.C. Red. at 6818. Rodriguez’s equity interest, however, belies the magnitude of his links to RRAI. He is the son of the principal owner, Ramon Rodriguez, and he expected to become the station’s full-time news director. Moreover, Juan Rodriguez admitted in an affidavit that on one occasion he initially concealed his identity while conducting an investigation on RRAI’s behalf. In an effort to determine whether David Ortiz secretly controlled the station licensed to his daughter, Rodriguez visited the station and requested its public file; when asked what company he represented, he replied that he represented none, but later identified himself as “Juan Carlos Rodriguez, of Ramon Rodriguez & Associates.” J.A. 491-92. In the affidavit, Rodriguez revealed that he had undertaken this mission on his father’s instructions. In light of this episode, it is hardly outlandish to suggest that the other investigation, in which the young Rodriguez allegedly posed as an FCC inspector, was also instigated by his father.
As the other factor against adding the issue, the Review Board noted that the allegation “was flatly denied by the Rodriguez principal, and his statement was supported by a third person.” 4 F.C.C. Red. at 6818. The AU similarly remarked that “[sjince the testimony submitted in support of the motion is contradicted, it would serve no useful purpose to explore because the standoff can never be resolved.” J.A. 598. These statements suggest a disquieting laxity on the Commission’s part. A hearing, with its cross-examination and opportunities to observe the demeanor of witnesses, can frequently resolve a conflict that appears irresolvable on paper; indeed, determining which of several conflicting accounts is accurate “is precisely the function of an evidentiary hearing.” California Public Broadcasting, 752 F.2d at 680.
The Commission may have valid reasons for refusing to inquire into the abuse-of-process charge, but it has thus far failed to articulate them. We must therefore find that the Commission’s peremptory dismissal of the abuse-of-process issue was arbitrary and capricious.
III. CONCLUSION
The FCC acted within its discretion in concluding, after discovery but before a hearing, that RRAI did not misrepresent its site status when applying for the license. The Commission failed, however, to explain satisfactorily its refusal to inquire into two other allegations: that RRAI had concealed its post-application site problems from the FCC by affirmative misstatement as well as by silence; and that Juan Rodriguez, acting on behalf of RRAI, abused the Commission’s process by impersonating an FCC inspector. Accordingly, we reverse these rulings and remand for further proceedings consistent with this opinion.
So ordered.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
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songer_respond2_1_4
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant.
SLATER FIREPROOF STORAGE CO. v. NICHOLSON TRANSIT CO. et al.
No. 4360.
Circuit Court of Appeals, Seventh Circuit.
March 13, 1931.
Louis Greenberg and John F. Higgins,' both of Chicago, Ill., for appellant.
Carl V. Essery, of Detroit, Mieh., and Robert Branand, Jr., of Chicago, Ill., for appellees Nicholson Transit Co. and another.
Lewis E. Mason, of Chicago, Ill., for appellee City of Chicago.
Before ALSCHULER and SPARKS, Circuit Judges, and BALTZELL, District Judge.
ALSCHULER, Circuit Judge.
The suit was in admiralty, brought by li-belants against the city of Chicago and the appellant, Slater Fireproof Storage Company, to recover damages alleged to have been occasioned to libelants’ wooden steamer Fel-loweraft because of defective condition of the municipal pier at Chicago at that part of the pier which had been leased by the city to appellant. It is alleged in the libel, and there was evidence to show, and the court found, that several feet below the water there projected beyond the face of the pier, in some eases as much as eleven inches, the tie rods or bolts designed to bold in place piles upon which rested the concrete structure of the pier, and that the Felloweraft, while discharging cargo at appellant’s part of the pier, came in contact with these protruding tie rods or bolts, causing boles to be made in the steamer’s side, and letting in water, which caused the steamer to sink.
The court found appellant liable primarily, and the city secondarily liable in ease the judgment awarded against appellant is not paid. Appellant challenges the correctness of this sequence of liability.
The city built the municipal pier, and in 1923 leased to appellant for the term of five years the west 500 lineal feet of the east 640 feet, being 50,000 square feet “of the first '3r freight floor of the north freight and passenger shed of the municipal pier.” It was provided in the lease that lessee was to use the premises for “shipping and dead storage of automobiles”; that lessee was to do no construction work on the pier, and would permit lessor to have free access to the premises for “examining the same or to make any needful repairs.”
Appellant contends that it was but one of several tenants of the pier, and ought not to be held for defects and obstructions which it did not place there, and which it could not by the exercise of ordinary diligence have discovered ; but that, if liable at all, it was only secondarily, after the eity, which was primarily liable for having constructed or placed this obstruction or nuisance to navigation where vessels would be likely to come in contact with it.
The eity, in its brief, practically concedes its own liability, but insists that under paragraph 8 of the lease appellant assumed primary responsibility, and agreed to save and protect the city against any liability for injuries occasioned at this part of the pier during the term of the lease, and to discharge any judgment which might he rendered against the city.
Appellant was conducting the demised premises as a wharf for receiving and storing, automobiles, and invited lake carriers of such freight to dock there.
While a wharfinger does "not guarantee the safety of the wharf or dock, and does not impliedly contract to be liable in any event for injuries through contact of vessels with obstructions there, he is required nevertheless to exercise reasonable care to- prevent injury to vessels because of such obstructions of which he knew, or of which by the exercise of reasonable care he should have known. Smith v. Burnett, 173 U. S. 430, 19 S. Ct. 442, 43 L. Ed. 756; Aetna Ins. Co. v. Davidson S. S. Co. (C. C. A.) 257 F. 68; Harms Co. v. Upper Hudson Stone Co. (C. C. A.) 234 F. 859. One of those implied duties devolving on the wharfinger is the making of reasonable inspection of the wharf and its approach to ascertain whether there are dangerous obstructions. Smith v. Burnett, supra; The Chancellor, 30 F.(2d) 227 (C. C. A. 2d); Transmarine Corp. v. Fore River Coal Co., 28 F. (2d) 624 (D. C. Mass.). If the failure to exercise such care is the proximate cause of injury to a vessel doeking there, the wharfinger is liable for his omission of duty.
It is apparent from the evidence that a very simple inspection would have revealed the existence of these projecting rods, so potentially dangerous to wooden ships, such as the one in question. The use of a pole shortly after the accident revealed their presence. The court properly concluded that appellant’s negligence contributed to the injury, and that appellant was liable.
The city, which constructed the pier and placed, or permitted to be placed, and suffered to remain, the protruding rods which caused the injury, is of course liable, and judgment against both appellant and the city was warranted.
Apart from the effect to be given paragraph 8 of the lease between appellant and the city, we need not determine which, if either, of the defendants to the action had primary liability. The paragraph specifies that the lessee shall hold the city harmless from all damages for liability “on account of or by reason of any act or omission, negligent or otherwise, of the Lessee.” The lessee’s failure to make the inspection, and either to remove the obstruction that would thus have been revealed, or to warn the boat of the danger, was lessee’s omission, but for'which the accident and consequent liability of the city would, in all likelihood, not have occurred.
Paragraph 8 is sufficiently broad to include within its terms lessee’s protection of the city against liability under the circumstances here appearing; and it was proper to find appellant primarily and the city secondarily liable, as was done.
The judgment is affirmed.
“8. The Lessee agrees to save and keep harmless the City of Chicago of and from any and all costs, expenses and damages, and any and all claims, demands or liability, on account of or by reason of any act or omission, negligent or otherwise, of the Lessee or any employe or employes of said Lessee, and in the event that any proceeding or suit is instituted against said City of Chicago or any of its officers or agents on account of or arising out of any such claim as herein mentioned, then the said Lessee shall defend the same at its own. cost and expense and shall pay any judgment rendered therein against said City of Chicago or any of its officers or agents. If said Lessee refuses or neglects to so defend any and all such actions, said party shall pay all costs, expenses and attorney's fees which the said City of Chicago or its officers or agents are subject to in the defense of the same.”
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant?
A. railroad
B. boat, shipping
C. shipping freight, UPS, flying tigers
D. airline
E. truck, armored cars
F. other
G. unclear
Answer:
|
songer_appstate
|
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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL MUTUAL INS. CO. OF THE DISTRICT OF COLUMBIA v. LIBERTY MUTUAL INS. CO., et al.
No. 11135.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 16, 1952.
Decided April 24, 1952.
Cornelius H. Doherty, Washington, D. C, with whom Alfred L. Bennett, Washington, D. C., was on the brief, for appellant.
Paul R. Connolly, Jr., Washington, D. C., with whom Howard Boyd, Washington, D. C., was on the brief, for appellees.
Before CLARK, BAZELON and WASHINGTON, Circuit Judges.
WASHINGTON, Circuit Judge.
This is a controversy between two insurance companies over which of them shall bear the burden of a loss.
Jennie Emens, the victim of a highway accident, recovered a judgment in New Jersey against James Mench, Jr., the owner and driver of a trailer-truck. Mench was insured under a policy issued to him by the National Mutual Insurance Company, and that company took charge of his defense. The judgment against Mench was never satisfied, and the present litigation arose when Jennie Emens brought' suit in the United States District Court for the District of Columbia against Mench’s insurer, the National company.
Under the terms of Mench’s policy, National’s liability did not begin until all other insurance available to the insured had been exhausted — that is, the policy was “excess” insurance. At the time of the accident, Mench’s truck was under lease to Elliott Bros. Trucking Company and was being driven by Mench on its business. Appellant National takes the view that insurance was available to Mench under a policy issued to Elliott Bros, by the Liberty Mutual Insurance Company. Believing itself therefore not to be liable under the policy it had issued to Mench, appellant lodged a third-party complaint against Elliott Bros, and the Liberty company. This complaint recited that National “presents” Liberty and Elliott Bros, as “parties to this action upon which recovery may be had by plaintiff,” and prayed that in the event of a judgment against National it be gjven judgment against appellees (third-party defendants) for the amount thereof. It is from the dismissal of this third-party complaint on summary judgment that the present appeal was taken.
Since 1946, Rule 14(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., has permitted a defendant to move for leave to serve a third-party complaint only upon a person “who is or may be liable to him [the defendant] for all or part of the plaintiff’s claim against him.” (Emphasis added.) No longer is it possible to bring in a person simply because he is or may be liable to the original plaintiff. To the extent, then, that the third-party complaint rested on the theory that appellees were liable to Jennie Emens, it was unauthorized by the Rule and properly dismissible.
Appellant suggests, however, that the third-party complaint can be read as relying on the theory that appellees are or may be liable to appellant, defendant below, on the basis of “subrogation.” But there is no basis for subrogation in the present case. On principle, the loss has fallen squarely where it should — on Mench, the negligent driver of the vehicle, and on his insurer. They cannot shift it to the innocent employer-lessee, Elliott Bros., or to the latter’s insurer, simply because Mench was driving the vehicle on Elliott' Bros.’ business at the time of the wrongdoing. See Kennedy v. Travelers Ins. Co., 127 Misc. 665, 217 N.Y.S. 261; American Automobile Ins. Co. v. Penn Mutual Indemnity Co., 3 Cir., 161 F.2d 62. Compare George’s Radio v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219.
Nothing in the insurance contracts here involved calls for a different result. There might perhaps be subrogation if Mench were covered as an insured by the Elliott Bros, policy, since recourse to Liberty’s liability might then be required before resort to the “excess insurance” provided by appellant’s contract with Mench. Cf. Builders & Mfrs. Mutual Cas. Co. v. Preferred Automobile Ins. Co., 6 Cir., 118 F.2d 118. But Mench was not an insured under the Elliott Bros, policy. The omnibus coverage clause of that policy does state that “the unqualified word ‘insured’ includes the named insured [Elliott Bros. Trucking Company] and also includes any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof * * But it goes on to say that °“The insurance with respect to any person or organization other than the named insured does not apply: * * * (d) with respect to any hired automobile, to the owner therof or any employee of such owner; * *
Mench, as the owner of the vehicle hired by Elliott Bros., was thus excluded from the definition of the term “insured.” The intent is clear: if an injured party sues the named insured [Elliott Bros.] and recovers, the insurance company will be liable ; but if he brings suit solely against the owner of a hired vehicle [Mench], the company assumes no responsibility either to the owner of the vehicle or to the injured party.
Nor is this result changed by the so-called “ICC endorsement” included in the policy which Liberty issued to Elliott Bros. The endorsement provides:
“In consideration of the premium stated in the policy to which this endorsement is attached, the company hereby agrees to pay any final judgment recovered against the insured for bodily injury to or the death of any person * * * resulting from the negligent operation, maintenance, or use of tíre motor vehicles under certificate of public convenience and necessity or permit issued to the insured by the Interstate Commerce Commission”.”
The endorsement was required by the Interstate Commerce Act, 49 U.S.C.A. § 315, for the protection of members of the public; it doubtless would have enured to the benefit of Jennie Ernens, had she chosen to sue Elliott Bros. But it hardly serves to shift Mench’s liability from his own insurer to Elliott Bros.’ insurer. Nor does it make it Menc'h an “insured” under the Liberty policy; that is still a matter governed by the express provisions of the body of the contract.
There being no genuine issue of material fact, and the third-party complaint being subject to dismissal under Rule 14(a), the grant of summary judgment was proper. The judgment of the District .Court will accordingly be
Affirmed.
. 3 Moore’s Federal Practice 405 et seq. (2d Ed. 1948).
. The other exclusions are:
“(a) with respect to an automobile while used with any trailer owned or hired by the insured and not covered by like insurance in the company; or with respect to a trailer while used with .any automobile owned or hired by the insured and not covered by like insurance in the company;
“(b) to any person or organization, or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place, with respect to any accident arising out of the operation thereof;
“(c) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of an automobile in the business of such employer;
♦ * * * * *
“(e) with respect to any non-owned automobile, to any executive officer if such automobile is owned by him or a member of his household.”
These exclusions have certain common characteristics: exception (a) is expected to be covered by specially written insurance; (b), (d) and (e) relate to independent contractors, who should obtain their own insurance; (c) is expected to be covered by workmen’s compensation insurance. In each instance, the intent is to exclude certain persons and organizations from the definition of “insured” under the policy. Cf. Malisfski v. Indemnity Ins. Co. of North America, 4 Cir., 135 F.2d 910; Notes, 72 A.L.R. 1415, 106 A.L.R. 1265, 126 A.L.R. 555. Lumber Mutual Casualty Ins. Co. of New York v. Stukes, 4 Cir., 164 F.2d 571, cited by appellant, is not to the contrary.
. The endorsement was evidently designed to eliminate the “independent contractor” defense. Cf. War Emergency Co-op. Ass’n v. Widenhouse, 4 Cir., 169 F.2d 403, certiorari denied 335 U.S. 898, 69 S.Ct. 300, 93 L.Ed. 433.
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_appel1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
In the Matter of John DICKINSON, A potential witness before the grand jury. John DICKINSON, Appellant, v. UNITED STATES of America, Appellee.
No. 1100, Docket 85-6018.
United States Court of Appeals, Second Circuit.
Argued April 18, 1985.
Decided May 28, 1985.
David W. Ely, New York City (Ivan S. Fisher, Fisher & Ely, P.C., New York City, of counsel), for appellant.
Peter A. Norling, New York City (Raymond J. Dearie, U.S. Atty., Allyne R. Ross, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.
Before MESKILL, NEWMAN and PIERCE, Circuit Judges.
PIERCE, Circuit Judge:
John Dickinson (“Dickinson”) appeals from an order of the United States District Court for the Eastern District of New York (Nickerson, Judge), dated December 28, 1984, denying his motion to terminate an order holding him in civil contempt for refusing to testify before a grand jury, pursuant to 28 U.S.C. § 1826 (1982), removing the direction for his commitment to custody, and imposing on him a daily fine of $1,500 until he agrees to testify, the term of the grand jury expires, or the grand jury determines it no longer requires his testimony.
Dickinson argues on appeal that the district court’s imposition of a $1,500 daily fine as a modification of his civil contempt sanction of incarceration was improper. He contends that: 1) imposition of a fine in the situation herein would have no greater coercive effect than incarceration has had; 2) given his poverty, imposition of a daily fine violates due process in that the fine would be in essence a form of future punishment for a present refusal to testify; and 3) once a finding has been made that incarceration is of no coercive effect, as occurred herein, imposition of a daily fine is prohibited by prior decisions of this Court. The government argues that: 1) since the testimony sought by the grand jury relates to funds which at one time were in Dickinson’s possession and might, if located, be subject to forfeiture pursuant to 18 U.S.C. § 1961 et seq. (1982) or 21 U.S.C. § 848 (1982), there is reason to believe that a fine would be more coercive than incarceration; 2) although the coercion of actual payment may not be present, the pressure of ultimate payment is presently felt; and 3) prior decisions of this Court do not in principle preclude imposition of a fine following the release of a eontemnor from confinement if the court has reason to believe the fine would be more coercive than the confinement.
We hold that the district court did not abuse its discretion in finding that, in view of the circumstances herein, a fine might be more coercive than incarceration. In addition, the district court properly concluded that prior law permits imposition of a fine against Dickinson, despite the court’s finding that incarceration was without coercive effect. Moreover, we hold that, even if Dickinson is financially unable to pay the fine as it accrues daily, the knowledge that he will eventually have to pay may presently coercive him to testify, and, as such, the fine is not punitive in nature.
We therefore affirm the decision of the district court.
Background
On June 18, 1982, the United States District Court for the Eastern District of New York, Neaher, Judge, sentenced Dickinson to a term of three years imprisonment for his felony conviction for willfully failing to report the transportation of currency outside the United States, in violation of the Currency and Foreign Transactions Reporting Act (“Reporting Act”), 31 U.S.C. §§ 1101, 1059(2) (1976). The district court also sentenced Dickinson to concurrent one-year terms of incarceration for his conviction on three counts of making false statements in passport applications, in violation of 18 U.S.C. § 1542 (1976).
The Reporting Act violation arose from Dickinson’s transport of $860,000 in cash from the United States to Great Britain on August 29, 1980. In a decision dated April 21, 1983, this Court reversed the Reporting Act felony conviction, finding, however, that the underlying misdemeanor Reporting Act violation survived as a lesser included offense. United States v. Dickinson, 706 F.2d 88 (2d Cir.1983). On July 28, 1983, the district court resentenced Dickinson to a one-year term, to run consecutively to the sentence previously imposed for the passport violations, and to a $1,000 fine.
While the felony conviction was on appeal, Dickinson was convicted in the United States District Court for the Western District of Washington for violations of narcotics laws and was given a six-year prison sentence, to run concurrently with his Eastern District of New York sentence.
On September 3, 1983, Dickinson was produced in the Eastern District of New York pursuant to a writ of habeas corpus ad testificandum. His testimony was sought by a grand jury, investigating violations of the Reporting Act. On February 15, 1984, Dickinson appeared before the grand jury, which sought information from him about his failure to report the $860,000 in cash which he transported out of the United States. Specifically, the grand jury sought to question him concerning “the identity of the legal or beneficial owners, and the direct sources and recipients of the transported funds for which he was convicted,” as well as his unexplained possession of additional currency at the time of the arrest. Dickinson refused to testify, citing his rights under the first, fourth, fifth, sixth, and ninth amendments to the United States Constitution. After having been granted use immunity pursuant to 18 U.S.C. §§ 6002, 6003 (1982), on April 4, 1984, he was ordered by the district court to testify before the grand jury. He still refused to do so, and, by order dated April 6, 1984, the district court adjudgéd him to be in civil contempt and ordered him incarcerated until he responded to the grand jury’s questions, or until the term of the grand jury expired, or the grand jury determined that it no longer required his testimony. Since at the time of the contempt order Dickinson was still in custody for his criminal convictions, the effect of the order was to interrupt his service of his criminal sentences for so long as he was committed pursuant to the civil contempt order.
Eight months after incarceration based on the civil contempt order, by motion dated December 10, 1984, Dickinson moved to terminate the order. He argued that the incarceration had failed to coerce him to respond to the grand jury’s inquiry and that there was no substantial likelihood that it ever would. In particular, he contended that, at the Metropolitan Correctional Center, where he was lodged, he had not been receiving necessary medical treatment. He stated that, as a “brittle diabetic,” he was in need of regular insulin injections, exercise, and an appropriate diet. He asserted that his physical condition was steadily deteriorating because he was routinely fed sweets and permitted to exercise only once per week. He claimed that both his willingness to endure not simply incarceration, but worsening health, and his daily fear of a medical emergency in order to persist in his refusal to testify demonstrated the steadfastness of his position and was predictive of the unlikelihood of future coercion.
On December 28,1984, “in the light of (1) the length of the sentence [Dickinson was] serving for a narcotics violation of which he was convicted in the Western District of Washington, (2) the extent of the remaining term of the grand jury [which was convened on January 30, 1984], and (3) his evident determination not to feel coerced by additional incarceration,” the district court modified the order of civil contempt and removed the direction for his commitment to custody. In lieu thereof, the court imposed on Dickinson a daily fine of $1,500 until he gives testimony, the term of the grand jury expires, or the grand jury determines that it no longer requires Dickinson’s testimony. It is from this order that Dickinson appeals.
I
The primary purpose of the imposition of a sanction for civil contempt is to coerce the contemnor into future compliance and to remedy past non-compliance, rather than to punish him. Shillitani v. United, States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966); Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 130 (2d Cir.1979). Since “due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed,” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972), once a contemnor establishes that there is no “substantial likelihood” that continued confinement would accomplish its coercive purpose, the confinement becomes punitive in nature, at which point due process requires its termination. Soobzokov v. CBS, Inc., 642 F.2d 28, 31 (2d Cir.1981). Herein, considering the length of the sentence Dickinson was serving for his narcotics violation, the extent of the remaining term of the grand jury, and Dickinson’s apparent determination not to testify, the district court found that continued confinement of Dickinson had lost its remedial force. Under the circumstances herein, we find the district court’s conclusion to be reasonable. We therefore find that the district court properly terminated Dickinson’s incarceration for contempt.
II
Apropos the district court’s imposition of a fine on Dickinson for each day he persists in his refusal to testify, we find that, given the wide discretion accorded a district court in fashioning a remedy for civil contempt, Vuitton, 592 F.2d at 130, and, given the district court’s responsibility to make an “individualized decision” in assessing the most effective coercive remedy, Simkin v. United States, 715 F.2d 34, 38, 39 (2d Cir.1983), imposition of a fine on Dickinson was also justifiable.
As the government notes, the district court’s discretion clearly permits, as a coercive device, the imposition of a fine. Marc Rich & Co., A.G. v. United States, 707 F.2d 663, 670 (2d Cir.), cert. denied, 463 U.S. 1215, 103 S.Ct. 3555, 77 L.Ed.2d 1400 (1983). Thus, there is no question that the district court herein had the power, at least initially, to impose a coercive fine. Dickinson contends, however, that imposition of a fine on a contemnor following his release from custody is improper, as a release from custody implies that the lesser coercive sanction of a fine will be equally without coercive effect.
We find that the circumstances in the instant case support the district court’s conclusion that a fine well might be more coercive on Dickinson than incarceration. The testimony sought by the grand jury and refused by Dickinson related to Dickinson’s transportation of $860,000 in cash outside the United States. In addition, during Dickinson’s trial for his Reporting Act violation, evidence was adduced showing Dickinson’s access to large sums of cash prior to his Reporting Act violation and up until his arrest thirteen months later. In light of Dickinson’s connection to this money, the district court concluded that his refusal to testify may have been based, at least in part, on his concern that revealing the identity of those holding a stake in the $860,000 transported by him in 1980, or in the other assets he allegedly possessed, might ultimately lead to criminal forfeiture of the assets, thereby precluding Dickinson from ever having access to the money. Consequently, the court concluded that while “[ojrdinarily imprisonment is a more coercive sanction than a fine,” in this case, imposition of a fine on Dickinson might be more coercive than incarceration. Given the circumstances herein, we find the district court’s conclusion to be a proper exercise of the court’s discretion.
Next, Dickinson contends that imposition of the fine violates due process. According to him, he is without any funds. He therefore maintains that the fine constitutes a future punishment for a present contempt, or a punitive, rather than a coercive sanction. We find this argument unpersuasive. If Dickinson were truly without assets, he could have filed an affidavit of poverty, but he has not done so; if he presently does have access to resources, then a fine may well have a coercive effect. As the government states, even if he is without assets and is unable to render payment out of current funds, the pressure of having to pay in the future would be presently felt and could have a coercive effect.
Finally, Dickinson argues that this Court’s holding in Soobzokov v. CBS, Inc., 642 F.2d 28 (2d Cir.1981), precludes the imposition of a coercive fine following the release of a contemnor from confinement. In Soobzokov, upon appellant’s continued refusal to answer certain questions asked of him during a deposition, the district court, on March 24, 1980, held appellant in contempt and ordered him incarcerated. Eleven days later, on April 4, 1980, the court ordered appellant’s release, finding that his confinement “[would] not achieve the purpose for which it was intended.” Id. at 30. In place of the confinement, however, the court ordered appellant to pay a fine for each day that he continued to refuse to answer the questions. While recognizing that the district court has wide discretion in fashioning a remedy for civil contempt, id. at 31, this Court held that the district court’s discretion is “not unlimited,” id., and that once the court “deter-min[ed] that imprisonment, the harshest sanction ..., would not work, [it was improper for the court to] impose[ ] the ‘less Draconian’ measure of a continuing daily fine.” Id.
Contrary to Dickinson’s contention, it is our view that Soobzokov does not stand for the general proposition that a fine may never be imposed on a contemnor after the district court has determined that incarceration will not have the desired effect. Rather, this Court’s ruling in Soobzokov merely states that, under the “peculiar facts of [that] case,” id. at 31, the district court erred in concluding that a fine would be more coercive than imprisonment.
The situation herein is distinguishable from that in Soobzokov. Whereas the district court in Soobzokov did not enunciate any reasons to support its conclusion, the district court herein articulated a rational basis for its finding that a fine would be more coercive than incarceration. Furthermore, Dickinson, unlike the contemnor in Soobzokov, was already in prison. Therefore, while the additional term of incarceration brought about by Dickinson’s commitment to custody under the contempt order would logically have some present coercive effect, the actual coercive effect would not be particularly strong until the point at which the original sentence would have otherwise expired. In Soobzokov, on the other hand, the contemnor was faced with a choice of immediate incarceration under the contempt order or none at all. Moreover, imposition of a $1,500 daily fine on the facts of this case as discussed above is likely to have a greater coercive effect than the $50 daily fine imposed in Soobzokov.
We note this Court’s statement in Simkin, 715 F.2d at 38, concerning the coercive effect of a civil contempt sanction, that “a district judge has virtually unreviewable discretion both as to the procedure he will use to reach his conclusion, and as to the merits of his conclusion.”
For the foregoing reasons, we find that the district court did not abuse its discretion in concluding that a monetary sanction would be more coercive than incarceration. We therefore affirm the decision of the district court.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Loy Dean SHEFFIELD, Appellant, v. UNITED STATES of America, Appellee.
No. 23681.
United States Court of Appeals Fifth Circuit.
April 17, 1967.
Rehearing Denied June 23, 1967.
Robert B. Thompson, Robinson, Thompson, Buice & Harben, Gainesville, Ga., for appellant.
Thomas K. McWhorter, Asst. U.S. Atty., Atlanta, Ga., Charles L. Goodson, U.S. Atty., Robert L. Smith, Asst. U.S. Atty., for appellee.
Before TUTTLE, Chief Judge, AINSWORTH, Circuit Judge, and FULTON, District Judge.
PER CURIAM:
This appellant was convicted on count one and on counts two and five of an indictment charging violation of the Federal liquor statutes. Appellant attacks only the sufficiency of the evidence to support the verdict as to count one. This court has held that where evidence is found sufficient to support conviction on one count, and the total sentence does not exceed the maximum which might have been imposed thereunder, the appellate court would not consider sufficiency of the evidence to support the other counts. Holt v. United States, 5 Cir., 1961, 288 F.2d 447; Benson v. United States, 5 Cir., 1964, 332 F.2d 288, 290.
The judgment is affirmed.
ON PETITION FOR REHEARING
Appellant calls our attention to the fact that our failure to consider his challenge to the sufficiency of the evidence introduced on count one of this indictment was based on an incorrect application of a well known rule of law. This rule is that where there is a verdict of guilt on several counts and the sentences are to be served concurrently, and where the evidence as to only one of the counts is challenged as sufficient on appeal, the court will not consider the sufficiency of the evidence to support the conviction of the single count if the sentence on the others does not exceed the maximum that could be imposed on the count in issue. See Holt v. United States, 5 Cir. 1961, 288 F.2d 447; Benson v. United States, 5 Cir. 1964, 332 F.2d 288, 290.
We agree that this rule is not applicable here, because the sentence on the first count which appellant attacks on appeal was for eighteen months in the custody of the Attorney General whereas the sentences on the remaining counts was for twelve months probation, to be served following the confinement. See Pugliese v. United States, 1st Cir. 343 F.2d 837.
However, upon a careful examination of the record, we find that not only was no motion for acquittal made as to the first, or any other, count at the conclusion of the case, but we also find, without determining that this is a proper case for application of the clear error rule, Rule 52(b) F.R.Crim.P., that there was ample evidence upon which the jury could find that Sheffield was guilty of the offense charged in count one of the indictment. Not only was there evidence that co-defendant, J. C. Painter, who was first approached by the government agents to buy the moonshine liquor, took them several miles to a place of business operated jointly by Sheffield and co-defendant Lingerfelt, who then went off and obtained the liquor and completed the transaction, but we conclude that the jury could also consider the evidence on the sale two days later which was made the basis of count two of the indictment. That evidence indicated that Sheffield actively participated in the later sale and offered to produce the liquor before the agents even asked for it. This evidence was admissible to show the degree of involvement of Sheffield on the earlier occasion, if any such evidence was needed after it was clear that the transaction took place on property at least jointly under Sheffield’s control.
The petition for rehearing is denied. .
. This, of course, prevented the trial court from considering the alleged lack of evidence to support the verdict of the jury, and would normally prevent our consideration of the case on appeal. However, here the government does not object to our consideration of the evidence on this ground.
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_habeas
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
HERMINIO MADERA, Inc., et al. v. MADERA.
No. 3183.
Circuit Court of; Appeals, First Circuit.
March 15, 1937.
Enrique Tgaravidez, of San Juan, P. R. (Juan B. Soto, of San Juan, P. R., and John W. Blakeney, Jr., of Boston, Mass., on the brief), for appellants.
L. E. Dubon, of San Juan, P. R. (B. F. Sanchez and Dubon & Ochoteco, all of San Juan, P. R., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
MORTON, Circuit Judge.
This is a suit to recover on a promissory note and foreclose a mortgage on real estate by which the note is secured. The District. Court of San Juan gave judgment for the "defendant; on appeal the Supreme Court of Puerto Rico held that the plaintiff was entitled to recover; and the defendant has appealed. We shall refer to the parties plaintiff and defendant as they appeared in the trial court.
The essential fact’s are not in controversy. The defendant and his three brothers, Jose, Manuel, and Bautista, were in business together as partners, and also through three corporations which they controlled. The business appears to have been of rather extensive character. Controversies arose between them and several lawsuits were instituted. There were many points of disagreement. The parties got together and made an agreement of complete settlement dated March 3, 1931. It is a rather elaborate multilateral contract executed by each of them individually, by the partnership, and by each of the three corporations. The present controversy involves the construction of this agreement, the defendant’s contention being that the plaintiff has no right to enforce the note and mortgage because he and his assignor are themselves in default under the agreement.
The agreement contains five preliminary clauses which state the parties and the circumstances which have led to the making of it, and that it is the intention to settle all matters in dispute. Then follow twelve clauses stating what is agreed. In the first of these clauses disposition is made of certain shares of stock of the Combate Tobacco Corporation, and the dismissal of certain suits is provided for. In the second clause Jose Madera in consideration of $12,000 relinquishes to the present defendants all his rights in Riera & Co., Inc., and in the partnership of Herminio Madera and Hermano (brother), this relinquishment not to be effective until the consideration shall have been paid. The third clause specifies the manner in which this payment shall be made, viz., $2,000 by a contemporaneous transfer of certain tobacco, the receipt of which is acknowledged, and-$10,000 to be paid in gold on January 1, 1936, with interest at 8 per cent, per annum. The fourth clause relates to the security for the postponed payment, that it shall be secured by a mortgage on certain real estate, the title to which stood in the name of one of the corporations, and by an assignment from Herminio Madera of a contract which he held to purchase other real estate. This clause also contains provisions requiring Herminio to reduce prior incumbrances on the mortgaged . property to specified amounts. The fifth clause requires Herminio Madera to pay interest and taxes on the mortgaged property and to keep it insured; and the sixth clause provides that on his failure to do so the principal sum shall forthwith become due, and the mortgagee shall be entitled to proceed to the collection of it. In the seventh clause Herminio Madera agrees to obtain the execution and registration of the mortgage “to secure Mr. J-ose Madera the $10,000 agreed upon under the terms above mentioned” etc. (Italics supplied.) The eighth clause requires Jose Madera and Manuel Madera, the plaintiff, upon execution and registration of the mortgage to dismiss all law suits in which they were plaintiffs and provides for the exchange of mutual releases between all parties. The final paragraph of this clause is what has led to the present controversy. It reads as follows:
“It is mutually agreed between Jose Madera, Manuel Madera and Herminio Madera that upon the execution of the mortgage in the Registry of Property in favor of Jose Madera on the Tobacco Palace-Bldg., subject to the terms of this covenant, and the inscription of the said mortgage without defects and as provided for in this clause that Jose Madera and Manuel Madera will deliver to Herminio Madera duly endorsed in blank the shares of stock that they may now hold of the corporation Alonso Riera & Co., Inc.”
The ninth clause provides for the dissolution of the partnership, Herminio Madera assuming all its debts. By the tenth clause the name of a corporation, having the same name as the partnership, is to be changed so that it shall not appear that Jose Madera is associated with it. By the eleventh clause Herminio Madera agrees not to use the words “and Hermano” in such a way as to indicate that Jose is associated with him. The twelfth and last clause reads as follows:
“Twelfth: That the defaulting party shall forfe'it and pay to the other of them the sum of $2,000.00 as liquidated damages ; and then that these presents shall become void.”
The mortgage was duly executed and registered by the defendants about two weeks after the contract of settlement; it is dated March 16, 1931. The note reads in part as follows:
“We will severally pay to Jose Madera Rivero, or to his order, on the first day of January One Thousand Nine Hundred Thirty-Six, at the Royal Bank of Canada (San Juan, Porto Rico Branch), the sum of Ten Thousand Dollars ($10,000.00) in gold of the legal tender of the United States of America, which sum shall bear interest, from this date, and up to the date of payment in full thereof, at the rate of eight per cent (8%) per annum, which interest we severally oblige ourselves to pay monthly on the first day of every month at the Royal Bank of Canada (San Juan, Porto Rico Branch) or at stích other place in Porto Rico which the holder of this note may designate. This note is executed by us, for value received; and in further consideration of the stipulation contained in an agreement executed by us and other persons, on the third of March, One Thous- and Nine Hundred and Thirty-One, before the notary of San Juan, Puerto Rico, Mr. Luis E. Dubon, recorded under the number 3,505 of the Registry of Affidavits of the said notary.
“This note is secured by a mortgage executed by the maker herein Tetuan Tobacco Leaf, Inc., on the Property known as the Tobacco Palace Building, situated at numbers 58, 60 and 62 on Tetuan Street, in the City of San Juan, Puerto Rico, as it appears by the Deed of Mortgage authorized on this date before the Notary of San Juan, Puerto Rico, Mr. Luis E. Dubon, and which Deed is number 22 of the Protocol of Deeds of said notary, corresponding to the present year, and this note is executed and delivered by us subject also to all terms stipulated in the aforesaid Deed of Mortgage.” .
“Default in the payment of the interests agreed upon and as provided herein as well as noncompliance with any of the conditions stipulated in the Deed of Mortgage referred to in the foregoing paragraph, shall produce the maturity of this obligation, and the holder thereof may proceed to its collection without previous demand or notice.” (Italics supplied.)
The various dismissals, releases, transfers, etc., called for by the agreement appear to have been, for the most part, at least, duly performed, though it is claimed that Herminio failed to reduce the prior obligations on the mortgaged property in accordance with his agreement to do so. The shares of stock in Riera & Co., Inc., which were to have been delivered by Jose Madera and Manuel Madera have never been delivered; they are in default under that clause of the agreement. The original mortgagee, Jose, assigned his interest in the mortgage and note to Manuel. For default in payment of interest and other defaults Manuel brought suit to collect the note and foreclose the mortgage. The defendant alleged that he was not entitled to do so because of the breach of the agreement by himself and Jose in failing to deliver the Riera stock.
The case is governed by the Civil Code of Puerto Rico, § 1053: “In mutual obligations none of the persons bound shall incur default if the other does not fulfill or does not submit to properly fulfill what is incumbent upon him. From the time one of the persons obligated fulfills his obligation the default begins for the other party.”
The District Judge held that the provisions of the agreement relating to the giving of the mortgage by Herminio, and the delivering of the stock by Jose and Manuel, constituted mutual obligations; that this mutuality extended to the mortgage and note while in the hands of the original parties or persons taking with notice, as Manuel clearly did; and that the plaintiff was not entitled to foreclose the mortgage or collect the note because of his own and his assignor’s breach of the agreement. The Supreme Court of Puerto Rico held that the agreements, relating to the giving of the mortgage and note, and to the transfer of the stock, were not “mutual obligations,” under section 1053. It also held that, “The covenant, on the part of Jose Madera as to the endorsement and delivery of stock was, at most, a negligible part of the consideration and his failure to endorse and deliver the stock was but a partial and immaterial failure of consideration.” It accordingly held that the failure of the plaintiff or his assignor to deliver the Riera stock did not bar enforcement by them of the mortgage and note.
■ The note and mortgage were given in performance of the fourth clause of the agreement. When executed and delivered they constituted independent agreements by the makers of them, and were not “mutual obligations” with any other clause of the contract, under section 1053, unless made so by express terms. The recital in the note that it was given in consideration of the agreement of settlement did not tie the two together so as to condition the note and mortgage on performance by payee of all his obligations under the settlement agreement. Explicit language or very unusual circumstances would be required to show such an intention with respect to an agreement as inherently independent as a promissory note and a mortgage securing it A recital that a mortgage and note are made in consideration of an agreement does not have that effect. See Powell & Powell v. Greenleaf & Currier, 104 Vt. 480, 162 A. 377, collecting cases.
There was ample consideration for the mortgage and note aside from the transfer of the Riera stock, viz., releases, dismissals of suits, transfers of property rights, etc., were involved. These are specified in the agreement preceding the provision relating to the note and mortgage. The agreement refers to them when it explicitly states that the note and mortgage are given “upon the terms above mentioned” which terms did not include the transfer of t-he Riera stock. It is clear, we think, that the plaintiff’s failure to transfer the stock was only a partial failure of consideration, and did not make the note and mortgage unenforceable at common law. No authorities have been cited which indicate that a different result would be reached under the Puerto Rico Code. There is no reason to suppose that the Supreme Court of Puerto Rico was in error on this point. The citations from the commentators relied on by the appellant do not apply where a clause in a bilateral contract has been performed and has resulted in the creation of an independent obligation.
The purpose and effect of the twelfth clause of the contract are hot entirely clear; but we think it was intended to provide against a breach' in limine, if one of the parties should refuse to make the settlement which had been agreed upon. The provision “and then that these present shall become void” would hardly be applicable to any other situation.
The judgment of the Supreme Court of Puerto Rico is affirmed, with costs.
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_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.
Robert H. RUNGE, Appellant, v. UNITED STATES of America, Appellee. Robert H. RUNGE, Appellant, v. UNITED STATES of America, Appellee.
Nos. 121-68, 167-69.
United States Court of Appeals, Tenth Circuit.
May 26, 1970.
H. C. Cooper, Oklahoma City, Okl. (Stephen K. Lester, Wichita, Kan., on the brief) for appellant.
Richard E. Oxandale, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief) for appellee.
Before LEWIS, Chief Judge, HILL, Circuit Judge, and LANGLEY, District Judge.
HILL, Circuit Judge.
In this consolidated case, appellant seeks reversal of two judgments which denied motions to vacate under 28 U.S. C. § 2255. The central issue before this court now is whether appellant’s plea of guilty was coerced because of the possibility of a jury-imposed death penalty under the Federal Kidnapping Act, 18 U.S.C. § 1201(a).
The settled rule is that a plea of guilty is void and subject to a § 2255 collateral attack when threats or promises divest it of the character of a voluntary act. When a coerced plea is the issue, all matters bearing on that allegation must be considered. When a case is in this posture, § 2255 requires a hearing on the issue unless the files, records, motions and transcripts conclusively show that appellant’s plea was voluntary; free from threat, promise or other coercion.
Numerous incidents, beginning with the plea and continuing through the second § 2255 motion, impress upon this Court the conclusion that the plea of April 9, 1962, was not in fact coerced by the threat of a jury-imposed death sentence; rather, we believe the coercion argument to be but a belated afterthought.
At arraignment time both Runge and his codefendant were represented by able court appointed counsel who advised each defendant to enter a plea of not guilty. Several days later, however, each defendant withdrew his former plea and pled guilty as charged under the Kidnapping and Dyer Acts. In the course of accepting appellant’s plea, it is apparent from the record that full compliance was had with Rule 11, F.R. Crim.P., 18 U.S.C.A. Furthermore, it is implicit in those proceedings that the court was satisfied that Runge was not encouraged to plead guilty because of the alleged threat inherent in a jury trial.
On April 11, 1968, appellant filed his first § 2255 motion, seeking relief on numerous grounds, including violations of Rules 5(a), (b), (c), 7, 9, 10, 21(b), 40(b), F.R.Crim.P.; violations of the 5th, 6th and 7th Amendments, U.S. Constitution; and violations of 18 U.S.C. § 3238. Nowhere in that motion is there any mention of a coerced plea. In fact, not until the sentencing court’s Memorandum and Order of April 18, did the question of a coerced plea and the case of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), arise. In that memorandum the court said it wished to be “fully advised as to all of the circumstances surrounding petitioner’s plea and sentence ** * * [so it could] determine the impact on that sentence of the decision of the Supreme Court of the United States in the case of United States v. Jackson * * The first time an allegation of coercion arose in behalf of appellant was in the June 4 Traverse written by Runge’s attorney in response to the District Attorney's Answer to the rule to show cause. Not until June 14, 1968, in a letter to Mr. Hackler, did appellant manifest a desire to use the new argument. Runge wrote: “ * * * Seeing as the Court saw fit to bring the Jackson v. United States, case in to my Motion. We would be quite foolish not to look into it, and it is my belief that I would qualify under the decision given by the Supreme Court.”
In an attempt to determine the necessity of an evidentiary hearing, a pretrial conference was held on July 10, 1968. Other than Runge’s own assertion that he was coerced into a guilty plea, there is no indication that the plea was made other than voluntarily. In fact, the record of the proceedings commands a contrary conclusion:
“MR. HACKLER (Runge’s Attorney) : If the Court please, as I understand our hearing this morning, we are to determine the necessity of a hearing and, as I read the cases on this matter, this boils down to a question of fact, whether there is a factual issue involved —or factual issues, involved that need to be presented to the Court. I have made some independent inquiry and investigation outside of the Court’s records. If I were to present — if we were to have a hearing, anything more than the affidavit on file in the record by Mr. Runge based on his statement that the — that he entered a plea to avoid the death penalty and to that extent the plea was involuntary and the other issues raised regarding how he came to be in the jurisdiction, I would not be able to present any other factual matters.
“I, just to review this matter, have made personal interview and telephone conversations with people involved in the prior hearing and the factual situation —on the factual situation I would not call any of those witnesses. So from that point of view, to be totally frank with the Court, I cannot present issues of fact other than is already in the record.”
This candid revelation by Runge’s attorney illustrates to our satisfaction that appellant’s mere denials of that which he has previously admitted, does not raise a substantial issue of fact within the meaning of . § 2255. Although an allegation of fact must ordinarily be accepted as true, it is not required where, as here, the allegation is contradicted by the files and records before the court. Putnam v. United States, 10 Cir., 337 F.2d 313 at 315. From the pre-trial conference of July 10, the court determined that a hearing was not required and entered findings of fact and conclusions of law denying the motion to vacate. In December, 1968, Runge filed a second § 2255 petition, singularly urging coercion in his guilty plea. This motion was denied on the grounds that it presented an issue identical to one on appeal under the initial § 2255 appeal. Both denials are appealed.
In order to be a beneficiary under the Jackson case, appellant reads it to say that prior to that decision, all who pled guilty while under a Federal Kidnapping Act charge, were, as a matter of law, coerced. That interpretation cannot fairly be attributed to that opinion, as we recognized in Brady v. United States, 404 F.2d 601. Rather, the coercive nature of the Act must be considered as but one element in a search to determine voluntariness.
Runge, just as Brady, seizes upon the language of Jackson stating, that since the “inevitable effect” of the death penalty provision of § 1201(a) was to needlessly encourage guilty pleas and jury trial waivers, all such pleas and waivers are ipso facto coerced when the fear of death is shown to be a factor in the plea. Our rejection of that interpretation of Jackson has been affirmed in Brady v. United States, 396 U.S. 809, 90 S.Ct. 86, 24 L.Ed.2d 63 (1970). Jackson did not hold § 1201(a) inherently coercive of guilty pleas; neither did it rule that all guilty pleas encouraged by fear of a possible death sentence are involuntary; nor did it hold that guilty pleas, so encouraged, are per se invalid. If a plea is “voluntarily” and “intelligently” made, it is valid. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); and McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
The voluntary character of Runge’s plea must be resolved by considering all relevant circumstances surrounding it. Initially, as Brady decided, the fact that Runge may have withheld his guilty plea if there had been no death penalty provision in § 1201(a) is not absolute proof of coercion. There is no claim of impropriety on the part of law officers, the court or his counsel. And there is a total lack of evidence that Runge was “so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty.” Brady v. United States, 397 U.S. at 750, 90 S.Ct. at 1470. Our independent review of the record discloses no evidence of threats, misrepresentation or improper promises.
The record before us likewise supports the conclusion that Runge’s plea was intelligently made. Competent counsel advised him, he was made aware of the nature of the charges against him, and nothing indicated that he was incompetent or otherwise not in control of his mental faculties. It must be concluded upon the record that Runge intelligently admitted that he had kidnapped the victim and not released her unharmed.
Crow v. United States, 397 F.2d 284 (10th Cir. 1968) is a distinguishable case which does not require an evidentiary hearing in Runge’s case. In Crow, § 2255 relief was denied without a hearing principally because of the comprehensive questioning of the defendant, by the court, to determine the voluntariness of his plea. There, the § 2255 motion alleged a coercive threat which purportedly caused appellant to plead guilty. The trial court simply stated it could not “accept” such a threat as coercive, thereby permitting the existence of the threat to go undenied. The case was then remanded to determine whether the alleged coercion actually existed.
After the Runge § 2255 pre-trial, the court entered findings of fact and conclusions of law which specifically state that there was an absence of any coercion. The court said, “the files, records and transcripts herein conclusively show that this petitioner was not coerced or influenced in any manner and therefore he is not entitled to the relief requested.”
The difficulty of attempting to accurately disclose appellant’s subjective state of mind at plea time cannot be minimized. However, it is not an impossible task, and is an undertaking which must eventually be assumed in all cases such as this. If there was any evidence in the files of this case to warrant an evidentiary hearing, our decision would properly be stayed. But for us to deny such inquiry here would unnecessarily postpone it for another court. And, the straightforward disclosures of appellant’s lawyer convinces this court that a remand would be repetitious of the July 10, 1968, pre-trial conference.
Our own careful review of the entire record, files, motions and transcripts leads us to the same conclusion: When Runge entered his guilty plea, he did it voluntarily, knowingly and free from any statutory, court or otherwise imposed coercion. This conclusion is conclusively reflected in the entire case, and thereby did not require the court below to conduct an evidentiary hearing.
The remaining § 2255 allegations, all of which were dependent upon the foregoing, may be disposed of summarily. A plea of guilty waives all non-jurisdictional defects. See Tyler v. United States, 361 F.2d 862 (10th Cir. 1966); Jude v. United States, 262 F.2d 117, 118 (10th Cir. 1958). Allegations of improper removal from one district to another are not grounds for § 2255 relief. See Ragavage v. United States, 272 F.2d 196, 197 (5th Cir. 1959). Allegations of illegal arrest are insufficient grounds for attack under § 2255. Moreland v. United States, 347 F.2d 376 (10th Cir. 1965). And, an allegation of illegal detention prior to arraignment is not grounds for relief under § 2255, Semet v. United States, 369 F.2d 90 (10th Cir. 1966).
The denial of each of the § 2255 motions to vacate is affirmed.
. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Crow v. United States, 397 F.2d 284 (10th Cir. 1968); Howell v. United States, 355 F.2d 173 (10th Cir. 1966); Putnam v. United States, 337 F.2d 313 (10th Cir. 1964).
. Brady v. United States, 404 F.2d 601 (10th Cir. 1968), aff’d 396 U.S. 809, 90 S.Ct. 86, 24 L.Ed.2d 63 (1970).
. Crow v. United States, 397 F.2d at 285; Howell v. United States, 355 F.2d at 174; Putnam v. United States, 337 F.2d at 315.
. “THE COURT: Of course, it should be entirely clear that the defendants understand their rights and that no action by the Court, hy the United States attorney or counsel for defendant or by anyone, has induced them to change their
position. The defendants should realize that they have the right to trial by jury and that only they can waive that right. It is entirely up to the defendants whether they desire to enter pleas of guilty to one or more counts of the indictment.
Now, the United States attorney and counsel for the defendants had mentioned to the Court the possibility that the defendants might desire to enter a plea of guilty. The charge in this case on Count 1 is a serious charge, of course, and the penalty upon conviction can be death if the verdict of the jury shall so recommend, or by imprisonment for any term of years or for life if the death penalty is not imposed.
Now, the practical effect of that is this: That the penalty of death can be imposed only by recommendation of the jury which returns a verdict of guilty if they should find the defendants or either
of them guilty. The Court could, of course, even on a plea of guilty, impanel a jury to determine the penalty only, and I am not going to make any statement here that might possibly be construed as any inducement to these defendants to enter a plea of guilty.
I did receive a letter from Hiss Smalley indicating that she did not desire that the death penalty be inflicted. I received also a letter from Miss Smalley’s father to the same effect, and my own view is that under these circumstances, if a plea of guilty is entered, that the Court would not be justified in impaneling a jury to determine the penalty, but I certainly want these defendants to understand before any further action is taken, I want to hear from them, themselves, that they do understand this situation.
Of course, it is up to them whether they withdraw their plea of not guilty .or not and enter a plea of guilty, but it must be crystal clear in the record and in the minds of all of us and in the minds particularly of these defendants, that no promise is held forth to them and that they themselves take the action voluntarily and with full knowledge of the situation.
:& * * * *
MR. HARDING: If Your Honor please, with respect to Robert Henry Runge, at this time the defendant would like leave of Court to withdraw the plea of not guilty to the several counts of the indictment entered on March 5, 1962, and to change those pleas at this time.
Prior to that, I would like to state for the record and for Your Honor and make a few comments in the form of questions to Mr. Runge.
Since I have been appointed to represent you in this matter, Mr. Runge, have you and I had the opportunity on several occasions to discuss the charges in the indictment and your wishes and desires with respect thereto?
DEPENDANT RUNGE: Yes, sir.
MR. HARDING: And we have gone over those matters on several occasions at some length, have we not?
DEPENDANT RUNGE: Yes, sir.
MR. HARDING: And on Wednesday of last week in the presence of your mother, Mrs. Muller, did we discuss the mater of the plea to this indictment or change in the plea to the counts of the indictment, for a period of about two hours?
DEPENDANT RUNGE: Yes, sir.
MR. HARDING: And as a result of our discussion of this matter, do you feel that you were fully informed by me of your several constitutional rights and the things that I, as your attorney, did recommend to you with respect to this matter?
DEPENDANT RUNGE: Yes, sir.
MR. HARDING: Were any promises or extenuating circumstances of any kind indicated by me in connection with this matter, as either might be coming from the district attorney or from 1-Iis Honor?
DEPENDANT RUNGE: No, sir.
MR. HARDING: And that if a plea of guilty were entered and made by you to any of the counts of the indictment, it would have to be based solely upon the information which I presented to you as your attorney and your own judgment and decision in the matter?
DEPENDANT RUNGE: Yes, sir.
MR. HARDING: Now, you have heard here Judge Stanley’s explanation of the receipt of the letters from Miss Smalley and her parents?
DEPENDANT RUNGE: Yes, sir.
MR. HARDING: The statements that His Honor has made in connection with that aspect of the matter. At this time you are asking the Court for leave to withdraw the pleas of not guilty to the three counts of the indictment and, as I understand it, you are now ready to enter a plea of guilty of your own free will without any coercion or any inducement whatever, to Counts 1 and 2 of the indictment, is that correct, sir?
DEPENDANT RUNGE: Yes, sir.
THE COURT: Counts 1 and 2?
MR. HARDING: I mean 1 and 3, Your Honor-, of the indictment.
S}C it*
THE COURT: Mr. Runge, I think that Mr. Harding has covered very fully the questions that I would have asked you, but I want it to be very clear in the record here that you understand that if you should withdraw your plea of not guilty to Counts 1 and 3 of the indictment and enter a plea of guilty to those counts, that you understand that by so doing you admit the facts alleged in these counts, waive your right to trial on the charge in each count and subject yourself to punishment within the limits fixed by law.
DEPENDANT RUNGE: Yes, sir.
THE COURT: And you do understand, do you, that the punishment prescribed for the offense charged in Count 1 of the indictment, that is, the kidnapping charge, that the punishment for that charge could be imprisonment for any term of years or for life?
DEPENDANT RUNGE: Yes, sir.
THE COURT: And with all that understanding and as a matter of your own choice, freely made, is it your desire to withdraw the plea of not guilty to Counts 1 and 3 and to enter a plea of guilty to those counts?
DEFENDANT RUNGE: Yes, sir.
* sfc * *
THE COURT: Mr. Runge, I’ll ask you, do you feel that your counsel, you originally had two, Mr. Smith was with you in this initially, was he not? Mr. Harding?
MR. HARDING: That is right, Your Honor.
THE COURT: Mr. Smith was relieved when he was appointed to office. Do you feel that Mr. Harding and Mr. Smith while he was so acting, have served your best interests throughout in this case?
DEFENDANT RUNGE: Yes, sir.
THE COURT: And do you feel that they have both served you capably and honestly and as you would want to be served under the circumstances?
DEFENDANT RUNGE: Yes, sir.”
. This Order granted leave for Runge to proceed in forma pauperis; appointed Mr. Hackler as appellant’s attorney; and ordered a rule to show cause to determine “whether or not under the decision in the case of United States v. Jackson the sentence under attack was validly imposed * *
. United States v. Jackson, 390 U.S. at 583, 88 S.Ct. at 1217. The Court elaborated in note 25: “So, too, in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 the Court held that comment on a defendant’s failure to testify imposes an impermissible penalty on the exercise of the right to remain silent at trial. Yet it obviously does not follow that every defendant who ever testified at a pre-Griffin trial in a State where the prosecution could have commented upon his failure to do so is entitled to automatic reléase upon the theory that his testimony must be regarded as compelled.”
. Shelton v. United States, 246 F.2d 571, 572, n. 2 (5th Cir. 1957) (en banc), rev’d on confession of error on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958).
. E. g., Howell v. United States, 355 F.2d 173 (10th Cir. 1966); Putnam v. United States, 337 F.2d 313 (10th Cir. 1964).
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
THURMAN, formerly Collector of Internal Revenue, v. STUDEBAKER CORPORATION.
No. 5874.
Circuit Court of Appeals, Seventh Circuit..
March 23, 1937.
Robert H. Jackson, Asst. Atty. Gen., Sewall Key and M. H. Eustace, Sp. Assts. to the Atty. Gen., and Val Nolan, U. S. Atty., and B. Howard Caughran, Asst. U. S. Atty., both of Indianapolis, Ind., for appellant.
Charles O. Roemler, of Indianapolis, Ind., for appellee.
Before EVANS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.
LINDLEY, District Judge.
This is an appeal from a judgment for $34,313.05 as a refund for overpayment of income taxes for the taxable year 1921. Appellant contends that judgment should have gone against appellee, first, because there was no overpayment, and, second, if there was, it was wiped out by a set-off of a liability for income taxes arising out of other transactions, recovery of which was barred by the statutes of limitation but set-off of which is authorized by the federal statutes. Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293.
To support the judgment, appellee relies upon an overpayment of taxes under its so-called “partnership plan,” whereby it agreed with its employees who had been in its services for three months or more that they might have common or preferred stock allotted to them from the treasury or purchased for them by the corporation in amounts limited each year to 20 per cent, of their earnings and to $400 at the market value. Appellee agreed to pay 50 per cent, of the cost of the stock, if employee was not in default, by crediting the latter’s account every three months with one-sixteenth of the said one-half of the cost. The employee was charged interest at 4 per cent, upon the unpaid balance and all dividends declared were credited to the stock purchase account of the employee. The excess of dividend credits over interest was applied in reduction in the amount of the balance.
Employees who withdrew might pay the balance due on the purchase price of the stock and receive certificates or authorize sale of stock held for them at the prevailing market price and receive in cash the difference between such amount and the balance due on the purchase price. The estate of a deceased employee had the same rights. Upon completion of payment in the manner aforesaid, certificates were delivered to the employees, who were not allowed to transfer the same before final payment.
The taxpayer kept its books and made its return on an accrual basis and actually credited to the employees dividends as declared and the amounts agreed to be paid by appellee. This contract was made with, and its benefits were extended only to, employees of appellee, clearly as a reward in the way of additional compensation for the services rendered by the employees to appellee, and the latter deducted as an expense of the operation of its business, as additional compensation paid the employees, the amounts thus contributed to them. Subsequent to the return for 1921 the Commissioner levied an additional tax, upon the ground that the deduction was wrongfully made. Appellee made the payment, brought this suit, and recovered.
Section 234 of the Revenue Act of 1921 (42 Stat. 254) provides that in computing the net income of a corporation there shall be allowable as deductions: “(1) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered.”
Article 107 of Regulations 45, promulgated January 28, 1921, provides that bonuses to employees shall be considered, when paid in good faith, as additional compensation for services actually rendered by employees, provided they do not exceed a reasonable compensation. Subsequently, the Department ruled, in Office Decision No. 763, Cumulative' Bulletin 4, page 76, that where a corporation permits its employees to purchase stock, retaining title until the purchase price is fully paid, so-called dividends credited to the account of the employee purchasing the stock as part payment shall be treated as additional compensation to the employees and taxable as such, and that any sums paid by the employer upon account of purchases of stock by employees shall be treated as additional compensation. To the same effect were other later decisions of the Department^
Thus, in administration of the law, that branch of the government charged with its enforcement and with collection of revenue has by its regulations arid decisions put a practical interpretation upon the statute reflecting the same reasoning and sustaining the same conclusions as those of the District Court. This 'should justify the judgment unless such interpretation is at varian,ce with the law.
Where a taxpayer’s books are kept on an accrual basis, the expenses paid or incurred, properly charged upon the books of the taxpayer and properly attributable to the process of earning income during the period covered by the return, must be deducted in that period, in order to reflect the true income of the taxpayer. United States v. Anderson (United States v. Yale & Towne Mfg. Co.), 269 U.S. 422, 46 S.Ct. 131, 134, 70 L.Ed. 347; American National Co. v. United States, 274 U.S. 99, 47 S.Ct. 520, 71 L.Ed. 946. In the first mentioned case, certain taxes accrued in the year 1916' but could not be determined until the following year, at which time the exact amount became evident. The taxpayer, though it entered a reserve for the taxes in 1916, made the deduction in 1917 when the taxes were fixed and, paid. The books having been kept on an accrual basis, the Supreme Court ruled. that the deduction should be made in the year 1916, as the expense was properly allocable to the income realized that year. The court said the accrual system was approved “to enable taxpayers to keep their books and make their returns according to scientific accounting principles, by charging against income earned during the taxable period, the expenses incurred in and properly attributable to the process of earning income during that period; and indeed, to require the tax return to be made on that basis, if the taxpayer failed or was unable to make the return on a strict receipts and disbursements basis. The appellee’s true income for the year 1916 could not have been determined without deducting from its gross income for the year the total cost and expenses attributable to the production of that income during the year. The reserve for munitions taxes set up on its books for 1916 must have been deducted from receivables for munitions sold in that year before the net results of the operations for the year could be ascertained.”
In Alger-Sullivan Lumber Co. v. Commissioner of Internal Revenue (C.C.A.) 57 F.(2d) 3, the taxpayer sold shares of its stock to four employees under a plan similar to that here presented. Certain credits to the employees were entered by the company because of dividends and other items. It deducted the market value of the stock, as additional compensation. The court approved the deduction, holding that the transaction was not a sale; that the credits were made to the employees in good faith as additional compensation; and 'that the company was entitled to the deduction claimed. The court, .however, did not pass upon the question of when the deduction should be made.
Under the reasoning of the Supreme Court, the credits made by this corporation to the employees and enteied upon the books at the time were clearly additional compensation to the employees. The books being kept on an accrual basis and this additional compensation being one of the expenses of the operation, during the period for which it was allowed, it was proper that such additional compensation should be treated as a deductible expense for that period. To have waited until the stock .was fully paid for would have been to allocate expenses in the form of additional compensation due employees to a period, in some instances, four years removed from the .time the services for which the compensation was paid were rendered. This Judge Baltzell held was not a proper method, and we agree.
Appellant cites three cases upon which he relies to support a contrary reasoning. In Hudson Motor Car Co. v. United States (Ct.Cl.) 3 F.Supp. 834, the court had before it a situation where stock was set aside for issuance to employees when the cash dividends equaled the par value. Eventually the dividends equaled this value and the certificates were issued. The employer attempted to deduct the market value ■of the stock in the year it was issued. The Commissioner contended that the transaction was a sale of stock and not additional compensation, and therefore not deductible. The court held, against appellant’s present contention, that the dividends credited on the purchase price were additional compensation and deductible as such.
The court held further that the deduction was allowable at the time of issuance of certificates. With this branch of the decision we disagree. Under the reasoning of the Supreme Court in United States v. Yale & Towne Mfg. Co., supra, the employer being on an accrual basis, tlie deductions could be taken properly only in the years the additional compensation was earned by the employees, credit for which they then received.
Gardner-Denver Co. v. Commissioner, 75 F.(2d) 38, was decided by this court. There the employer contracted with employees to sell them stock at substantially the market value, to be paid for with interest in monthly payments in cash and by the application of such dividends as were declared over a period of five years, whereupon the certificates were to be delivered. When the time for sale arrived, the market value had increased $432,000 over the selling price. The ‘‘employer attempted to deduct the difference between the market value and the price at which it sold to its employees upon the theory that such difference represented a deductible expense. This court found that the deduction constituting “subsequent increment in value” represented no deductible outlay or expense, and held further that credits extended employees in prior years were not deductible in later years when the contracts matured. Furthermore, the facts in that case were such that it was deemed that the transaction amounted to sale of stock rather than to additional compensation.
Schaefer v. Bowers, 50 F.(2d) 689 (C.C.A.2), had to do with the tax upon the employee’s income and docs not touch the question at issue.
The amounts deducted, having represented, as they did, additional compensation charged as an expense against the employer and credited to the employee as the services were rendered, and the books having been kept on an accrual basis, appellee was entitled to the deduction and to recover the overpayment of taxes assessed.
Appellant insists further, however, that if appellee was entitled to recovery, appellant had a right to set off against the right a liability for additional taxes properly assessable against appellee for the year 1921, collection of which was barred by the statute of limitation. In this respect appellant relics upon the proposition that no recovery for refund may be had where it appears that the taxpayer is indebted to the United States for additional taxes. Such is the rule. Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293. It becomes necessary then to determine whether any additional tax was due from appellee because of other transactions.
Appellant’s contention in this respect arises out of two similar contracts that appellee had, one with its branch managers under a so-called branch managers’ compensation and bonus plan, and the other with its managing officers under its bonus plan for management. The essential intent of each of these contracts was the same as that with the employees. The allowances made under .each of them constituted additional compensation. In each of the years 1920 and 1921 the credits of the appellee to its managing officers for additional compensation aggregated over $250,000. These items were charged to expense, credited to the officers upon their contracts, and taken as deductions in computing taxable net income for those years. Under its arrangement with the branch managers, appellee credited to them and charged to expense as additional compensation, in the year 1920, $17,-000, and in 1921, $28,000. The plain purport of each of the three contracts was to further a general plan of appellee to permit its executive officers, branch managers, and employees to share in such profits as might accrue in the business operation of appellee, manufacturing,and selling automobiles, by distributing to them as additional compensation the sums agreed upon. The testimony supports only a finding that this was a well-considered, well-developed policy of industrial operation and management carried into practical execution, in accord with the meaning and intent of the regulations of the Revenue Department herein-before referred to, with the policy of administration of the revenue laws for a number of years and with the reasoning of the Supreme Court in the cases mentioned. The deductions of the amounts credited, because of the contracts and because appellee was on the accrual basis, were, as in the case of the employees, properly deductible as expense and no additional tax, therefore, was due.
The judgment of the District Court is affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_applfrom
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
NATIONAL COAL ASSOCIATION and American Mining Congress, Appellants, v. Manuel LUJAN, Jr., Secretary of the Interior, et al., Appellees.
No. 91-5328.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 22, 1992.
Decided Dec. 1, 1992.
As Amended Dec. 1, 1992.
J. Michael Klise, with whom John A. Macleod, Thomas C. Means, Edward M. Green, Stuart A. Sanderson, and Harold P. Quinn, Jr., Washington, D.C., were on the brief, for appellants.
Peter A. Appel, Attorney, Dept, of Justice, with whom Dirk D. Snel, Attorney, Dept, of Justice, Washington, D.C., were on the brief, for appellees.
Before: RUTH BADER GINSBURG, WILLIAMS, and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
RUTH BADER GINSBURG, Circuit Judge:
This is an action for judicial review of regulations issued by the Secretary of the Interior on February 8, 1988 under the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. §§ 1201 et seq. (1988). Plaintiffs-Appellants are two associations of coal producers, the National Coal Association and the American Mining Congress (NCA/AMC); the challenged regulations, implementing SMCRA § 518(f), 30 U.S.C. § 1268(f), provide for the assessment of individual civil penalties against officers, directors, and agents of corporate mine operators. The district court, in an unelaborated one-sentence order responding to cross-motions for summary judgment, held for the Secretary. National Coal Association v. United States Department of the Interior, No. 88-951 (D.D.C. July 19, 1991).
In this appeal, NCA/AMC first seek an order remanding the case to the district court for an explanation of its decision. Alternately, in the event that we reach the merits, NCA/AMC urge us to set aside the regulations on individual civil penalties as arbitrary, capricious, and inconsistent with law. The Secretary initially contends that the plaintiff trade associations lack standing to sue; on the merits, the Secretary maintains that the regulations are sound and should be affirmed. We hold that the trade associations NCA/AMC have standing to sue. Because a remand would entail unwarranted protraction, we reach the merits and uphold the regulations.
I. Background '
Enacted “to protect society and the environment from the adverse effects of surface coal mining operations,” 30 U.S.C. § 1202(a), SMCRA establishes an enforcement scheme that includes civil and criminal penalties. See 30 U.S.C. § 1268. This dispute involves the relationship between two of SMCRA’s civil penalty provisions and the regulations issued under each. The first, which the Secretary calls “a primary enforcement mechanism,” see Brief for the Federal Appellees at 4, provides for civil penalties against holders of strip-mining permits:
[A]ny permittee who violates any permit condition or who violates any other provision of this subchapter, may be assessed a civil penalty by the Secretary.... Such penalty shall not exceed $5000 for each violation. Each day of continuing violation may be deemed a separate violation for purposes of penalty assessments. In determining the amount of the penalty, consideration shall be given to the permittee’s history of previous violations at the particular surface coal mining operation; the seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public; whether the permittee was negligent; and the demonstrated good faith of the permittee charged in attempting to achieve rapid compliance after notification of the violation.
30 U.S.C. § 1268(a) (subsection (a)). The parties refer to subsection (a) as the “corporate civil penalties” provision.
Supplementing the provision on corporate civil penalties, and directly at issue in this litigation, SMCRA authorizes the imposition of civil penalties on individual representatives of corporate permittees:
Whenever a corporate permittee violates a condition of a [Federal] permit[,] ... any director, officer, or agent of such corporation who willfully and knowingly authorized, ordered, or carried out such violation ... shall be subject to the same civil penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (e) [criminal penalties] of this section.
30 U.S.C. § 1268(f) (subsection (f)). The Secretary refers to subsection (f), along with provisions for injunctive relief, criminal prosecution, and permit suspension or revocation, as “alternate enforcement mechanisms.” See Brief for the Federal Appellees at 4-6.
In 1979, the Office of Surface Mining Reclamation and Enforcement (OSMRE, a constituent of the Department of the Interior) issued permanent program regulations to implement subsection (a)’s corporate civil penalty prescriptions. See 44 Fed.Reg. 15,461 (1979), codified at 30 C.F.R. § 845 (1991). Under the subsection (a) regulations, OSMRE determines the gravity of the permit holder’s violation and sets the amount of assessed penalties according to a “point system.” Under the point system, a permittee is assigned a score in four categories derived from the factors listed in subsection (a): (1) history of previous violations; (2) “seriousness” of the violation (determined in part by “the extent of potential or actual damage, in terms of area and impact on the public or environment”); (3) degree of any negligence or greater fault involved in the violation; and (4) good faith in attempting to achieve compliance. See 30 C.F.R. § 845.-13. The point total for the violation determines the amount of the permittee’s penalty. See 30 C.F.R. § 845.14 (penalty table).
Upon finding that a penalty is in order, OSMRE sends the permittee a “proposed assessment”; within 30 days of receipt of OSMRE's proposal, the permittee may request an “assessment conference” to review the proposal, informally, with an OSMRE “conference officer." See 30 C.F.R. § 845.18. Within 30 days after the assessment conference is held, the conference officer “shall either ... [s]ettle the issues” or “[a]ffirm, raise, lower, or vacate the penalty.” 30 C.F.R. § 845.18(b)(3). If dissatisfied with the conference outcome, the permittee may request a formal administrative hearing and, ultimately, petition for judicial review. See 30 C.F.R. § 845.19. Pending pursuit and completion of administrative and judicial review of a corporate penalty, the permittee must place in an escrow account the entire amount assessed by OSMRE. See 30 U.S.C. § 1268(c); 30 C.F.R. § 845.19.
The agency did not propose regulations to implement subsection (0, the individual civil penalties provision, until several years after it developed and installed the subsection (a) corporate civil penalties regulations. In 1980 and 1983, however, OSMRE issued successive internal directives “pro-vid[ing] guidance concerning implementation” of subsection (f). See, e.g., OSMRE Directive, Individual Civil Penalty Assessment (issued October 11, 1983), reprinted in Joint Appendix (J.A.) at 47. The directives described circumstances in which agency personnel should consider seeking individual civil penalties under subsection (f). See id., J.A. at 47-49 (listing “site criteria” and “individual criteria”). Under the heading “Procedures,” the directives stated: “Hearings and conference procedures for individual penalties will be the same as procedures developed for hearings and conferences for regular penalties.” Id., J.A. at 49.
In 1986, in response to a consent decree settling a “citizen suit” brought against the Secretary by environmental organizations, OSMRE proposed regulations implementing subsection (f). See 51 Fed.Reg. 46,838 (1986). These proposed regulations on individual civil penalties differed from the previously issued corporate regulations in two relevant respects. First, the individual penalty scheme did not provide for assessment conferences. Second, to set the amount of the penalty, the proposed subsection (f) regulations used, in lieu of a point system, a more open-ended balancing of the relevant statutory considerations, tailored to fit individuals. The proposed regulations delineated three factors: the individual’s involvement in previous violations; the seriousness of the violation; and the individual’s good faith in attempting to achieve rapid compliance. See 51 Fed.Reg. at 46,842. The “seriousness” criterion, as stated in the proposed individual regulations, contained a key parenthetical component, one that does not appear in the corporate regulations; the new component concerned the cost of reclamation:
(2) The seriousness of the violation ... (as indicated by the extent of damage and/or the cost of reclamation), including any irreparable harm to the environment and any hazard to the health or safety of the public[.]
Id. (emphasis added). On February 8, 1988, with no alteration of the 1986 text significant here, OSMRE issued final regulations governing individual civil penalties. See 53 Fed.Reg. 3664 (1988), codified at 30 C.F.R. § 846 (1991).
Suing to set aside the final rule containing the individual penalty prescriptions, NCA/AMC trained their attack on the agency’s failure to include in the subsection (f) individual penalty regulations two key features included in the subsection (a) corporate penalty regulations: the assessment conference and the point system. See 30 U.S.C. § 1276(a)(1) (rules promulgated under SMCRA may be set aside on judicial review if they are “arbitrary, capricious, or otherwise inconsistent with law”). On cross-motions for summary judgment, and after full briefing by the parties, the district court ruled for the Secretary without stating reasons for the court’s decision.
II. Threshold Questions
A. Standing
The Secretary argues, for the first time in the case, that the two plaintiff trade associations lack standing to challenge the individual penalty regulations. In a nutshell, the Secretary points out that NCA/AMC’s members are coal companies. The challenged regulations, however, apply only to individuals. According to the Secretary, NCA/AMC have not demonstrated that regulations on penalties for individuals threaten the trade associations or their corporate members with any injury. We find utterly unpersuasive the Secretary’s endeavor in this context to divorce the corporation from those who act in its name.
We first recite settled law on the representational capacity of entities like NCA/ AMC. An association has standing if its members would have standing to sue in their own right; if it seeks to protect interests germane to its organizational purpose; and if individual members’ participation is not required for proper disposition of the litigation. See Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977).
Insisting that NCA/AMC’s coal company members lack the causally-connected and redressable injury essential to standing, see Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), the Secretary observes that penalties paid by individuals “do not increase the liability of [NCA/AMC member] coal companies.” Brief for the Federal Appellees at 17. The obligation of plaintiffs’ member companies to indemnify their officers and agents, the Secretary continues, “would not constitute sufficient injury because the extent of the member companies’ responsibility would be determined by independent action, namely the knowing and willful conduct of the members’ officers, directors, or agents.” Id. (citing Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-26, 48 L.Ed.2d 450 (1976)). Because a corporate entity ultimately can act only through a human agent, the Secretary’s argument appears more formal than substantial.
Arguably, NCA/AMC’s coal company members themselves could proceed on behalf of their officers, directors, and agents — the individuals who are subject to subsection (f) penalties — and the trade associations could stand in for those companies. See New York State Club Ass’n v. New York City, 487 U.S. 1, 9-10, 108 S.Ct. 2225, 2232, 101 L.Ed.2d 1 (1988) (an association composed of associations has standing to sue if the constituent associations would have standing to sue on behalf of their individual members); United States v. Westinghouse Electric Corp., 638 F.2d 570, 574 (3d Cir.1980) (corporation has standing to assert employees’ privacy rights implicated by administrative subpoena for employees’ medical records). We do not consider that prospect, however, because we are satisfied that the companies’ own economic interests are vitally affected by the subsection (f) regulations.
The very purpose of the individual penalties for which subsection (f) provides is to impel permittee compliance with SMCRA by giving those who act for the corporation strong cause to adhere to the law and to abate violations promptly. As the agency declared when it issued the regulations, the subsection (f) civil penalty rule is designed “to insure that the requirements of the Act are met”; OSMRE expected that a corporate official would opt to “order the corporate permittee to abate the violation” rather than face stiff individual penalties. 53 Fed.Reg. at 3672. Given the raison d’etre for individual penalties, moreover, it cannot be seriously doubted that coal companies fall within the zone of interests regulated by subsection (f). See Clarke v. Securities Industry Ass’n, 479 U.S. 388, 394-400, 107 S.Ct. 750, 754-57, 93 L.Ed.2d 757 (1987); see also 30 U.S.C. § 1276(a)(1) (affording right to judicial review of SMCRA rulemak-ings to “any person who participated in the administrative proceedings and who is aggrieved by the action of the Secretary”).
Unlike Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. at 42-44, 96 S.Ct. at 1926-27, the causal link between the allegedly unlawful action and the alleged injury here is not “speculative.” Sure and swift individual penalty imposition, the agency itself reasoned, would propel corporate action, thereby advancing the objectives Congress set in SMCRA. No one has suggested any cause to doubt the agency’s reasoning on this point. In short, the agency’s justification for rendering individual penalty enforcement more efficient and effective belies the standing objection it lately asserts.
In addition to the matter of member standing, the other requirements for associational standing are met. The interests the two plaintiff trade associations seek to protect are germane to their organizational goals of ensuring a favorable regulatory environment and economic health for coal companies. See Humane Society of the United States v. Hodel, 840 F.2d 45, 58 (D.C.Cir.1988) (“undemanding” germaneness test requires "mere pertinence between litigation subject and organizational purpose”). Finally, there is no apparent reason why this suit requires the participation of individual companies. NCA/ AMC have standing to sue.
B. Remand
NCA/AMC acknowledge that a remand for district court explanation of its summary judgment is not dictated by law. See Fed.R.Civ.P. 52(a) (stating that “[findings of fact and conclusions of law are unnecessary on decisions of motions under Rule ... 56”). Nevertheless, the trade associations urge the large and practical importance to litigants and this court of explicitly reasoned decisionmaking in the court of first instance. A responsible accounting for its decision by the district court, we agree, informs both the litigants and this court; such an accounting serves the twin objectives of fairness to the parties and judicial economy. Our federal court system works best when the courts that form the foundation of the system give to the litigants and to the judges next in line the full benefit of their analysis. See, e.g., National Wildlife Fed’n v. Hodel, 839 F.2d 694 (D.C.Cir.1988) (affirming in large part several district court decisions that substantially reduced number of issues in controversy); In re Korean Air Lines, 829 F.2d 1171 (D.C.Cir.), affirming order and adopting opinion of district court in 664 F.Supp. 1488 (D.D.C.1987), aff'd sub nom. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989); Universal Health Servs. of McAllen, Inc. v. Sullivan, 770 F.Supp. 704 (D.D.C.1991), aff'd mem., 978 F.2d 745 (D.C.Cir.1992).
In this case, however, several considerations lead us to resist a remand. The issues presented are few and clearly defined; the case has been well briefed and argued; it is our obligation in any event to review the administrative record de novo, and here that record is not dense. Cf. Randolph-Sheppard Vendors of America, Inc. v. Harris, 628 F.2d 1364, 1368 (D.C.Cir.1980) (refusing to remand for district court clarification where no facts were in dispute and record was adequate to enable this court to review agency rules de novo). Mindful of the years it has taken to complete the SMCRA penalty provision rulemakings, and unwilling further to delay final decision on the regulations, we proceed to the merits of NCA/AMC’s case.
III. Validity of the Subsection (f) Regulations
NCA/AMC portray the Secretary’s decision not to include the assessment conference procedure or the point system in the subsection (f) regulations as a “reversal of the agency’s former views”; under Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 41-42, 103 S.Ct. 2856, 2865-66, 77 L.Ed.2d 443 (1983) (State Farm), NCA/AMC assert, such a reversal must be supported by “reasoned analysis.” The Secretary responds that because formal regulations had never before been issued under subsection (f), OSMRE was working on a clean slate; hence, OSMRE was not required to justify its choice not to copy exactly the procedures adopted years earlier in the subsection (a) regulations. See State Farm, 463 U.S. at 42, 103 S.Ct. at 2866 (“[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”) (emphasis added). Neither side, we conclude, has it entirely right.
Subsections (a) and (f) are interrelated and cross-referenced; the statutory provision applicable to individuals incorporates, in part, those governing corporations. Moreover, the agency relied on the corporate procedures when it framed interim, internal directives on individual penalties. See supra pp. 1550-51. This statutory relationship and regulatory history made it incumbent on OSMRE to say why it chose to depart from the corporate scheme when it adopted the individual regulations.
But concise statement would do. The challenged individual penalty regulations were not a volte-face as was the change at issue in State Farm. See 463 U.S. at 41-42, 103 S.Ct. at 2865-66. There, an agency abandoned without cogent explanation a policy option it had earlier studied extensively and strongly endorsed. See id. at 46-51, 103 S.Ct. at 2868-71. Here, by contrast, the agency has not abandoned or rescinded a policy; it has simply refused permanently to extend to individual penalty enforcement certain policy approaches developed in the context of corporate penalties. In promulgating the regulations on corporate penalties, the agency did not purport to address individual penalties as well. OSMRE’s initial directives on individual penalties were notably provisional in character. In this setting, the burden of explanation derived from State Farm is relatively light.
A. Assessment Conferences
The assessment conference procedure was part of the initial corporate penalty scheme in 1977, and was incorporated into the permanent program regulations issued in 1979. See 30 C.F.R. § 723.18 (1991); 30 C.F.R. § 845.18 (1991). The preamble to the 1977 interim regulations described the assessment conference as an opportunity “to discuss informally the facts relevant to the proposed assessment and reach an agreement on the proper assessment without a formal hearing.” 42 Fed. Reg. 62,639, 62,672 (1977). In its discussion of the 1979 corporate penalty regulations, the agency further explained:
The conference procedure insures the Office of correct assessments by taking into account good faith and any other relevant information. This prevents the underpayment or overpayment of the penalty into escrow, and provides a much greater measure of due process to the operator, who is assured of an opportunity to be heard and to obtain a correction of the penalty before having to put his money into escrow.
44 Fed.Reg. 14,902, 15,309 (1979).
The subsection (f) individual penalty regulations proposed in 1986 included no assessment conference. OSMRE explained that the basic reason for the conference was inapplicable to subsection (f) penalties because individuals, unlike corporate violators, were not required to prepay penalties into escrow pending administrative and judicial review. See 51 Fed.Reg. at 46,841. In response to a commenter who had suggested that the subsection (f) regulations provide for assessment conferences, the agency comprehensively explained:
The rules provide an adequate opportunity for administrative review through [the Department of the Interior’s Office of Hearings and Appeals (OHA)]. No need exists to create an additional level of administrative review in OSMRE. As was previously stated, the corporate official is not required to pre-pay the assessment as a prior condition to requesting a hearing with OHA; thus no due process violation exists. Moreover, the notice of proposed assessment against the corporate official will contain a detailed narrative explanation of the reasons for the assessment and the amount assessed, so that the corporate official will clearly understand why OSMRE believes that an individual civil penalty is justified. It has been OSMRE’s experience with corporate violations that almost everyone requests both an assessment conference and a hearing «with OHA, so that rather than eliminate administrative waste and inconvenience a conference simply would add another step in the process and increase the government’s administrative costs. Finally, an individual civil penalty will be assessed only for knowing and willful conduct. Questions concerning such conduct may be better resolved by an administrative law judge, rather than an assessment conference officer.
53 Fed.Reg. at 3671. There is no need for more words on this issue. This uncommonly concise, complete and convincing agency explanation fully satisfies State Farm’s demand for “reasoned analysis.” 463 U.S. at 42, 103 S.Ct. at 2866.
B. The “Same Penalties” Clause of Subsection (f)
Subsection (f) declares individual directors, officers, or agents subject to the “same civil penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (e) of this section.” 30 U.S.C. § 1268(f) (emphasis added). NCA/AMC argue that OSMRE ignored this requirement when it adopted procedures for setting the amounts of individual penalties that did not conform to the procedures previously established for corporate penalties. In particular, NCA/AMC attack the agency’s failure to use the point system in the subsection (f) penalty scheme and its adoption of a novel measure of “seriousness” explicitly based on reclamation costs.
SMCRA is administered by an office of the Department of the Interior. We must defer to that agency’s interpretation of the “same penalties” provision unless the agency's reading is contrary to the statute’s instruction, or is unreasonable. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). In promulgating the individual penalty regulations, OSMRE explained that it construed the subsection (a) “same penalties” language “to mean that the relevant criteria of [subsection (a)] are to be applied, and that the daily ceiling in [subsection (a) ] on the amount of the penalty must be observed when assessing an individual civil penalty.” 53 Fed.Reg. at 3669. But, the agency added, the “same penalties” provision does not require “the amount of the penalty assessed against the individual to be the same as that assessed against the corporation.” Id.
We find no explicit or implicit instruction in subsection (f) telling us whether the “same penalties” requirement means that the corporate and individual penalty assessments must be calculated using the identical methodologies, or whether, as the agency maintains, “same penalties” means only that the criteria of subsection (a) must also be used in subsection (f) analysis and that the penalty ceilings must be the same. The text of the statute does make it plain that the factors for assessing corporate and individual penalties are not identical; notably, the corporate provisions require consideration of “whether the permittee was negligent,” while the subsection (f) provisions are inapplicable unless the individual director, officer, or agent acted “willfully and knowingly.” This difference heightens our skepticism regarding the trade associations’ position that Congress intended the “same penalties” language to require precisely parallel assessment methodologies.
NCA/AMC have indicated what Congress might have said to convey the meaning the trade associations urge. Subsection (f) uses the words “same civil penalties.” On brief, NCA/AMC translate these words to command the same “civil penalty scheme." Brief of Appellants at 16 (emphasis added). Nothing coming from Congress obliged the agency to agree. In sum, the statute is silent on the methods the agency should use in fixing the amount of the penalty, and OSMRE reasonably concluded that the “same penalties” phrase did not require adoption of the point system for individual penalties. We take up infra at p. 1556 NCA/AMC’s further argument that, even if not ruled out by statute, the agency’s abandonment of the point system in the individual penalties regulation was arbitrary and capricious.
We treat next NCA/AMC’s statutory objection to OSMRE’s use of reclamation costs in the individual penalty assessment calculus. The corporate penalty regulations assign gravity-of-violation points for seriousness based on “the extent of the potential or actual damage, in terms of area and impact on the public or environment.]” 30 C.F.R. § 845.13(b)(2)(h) (1991). The individual penalty regulations include as a measure of the seriousness of a violation “the cost of reclamation.” 30 C.F.R. § 846.14(a)(2) (1991). We see no reason why the “cost of reclamation” does not fit within the statutory criterion of “seriousness” or why the agency should be locked into the subsection (a) regulations’ formulation of that criterion. See Chevron, 467 U.S. at 863-64, 104 S.Ct. at 2792 (“An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.”). Again, we agree with the agency that the “same civil penalties” language of subsection (f) does not mandate the degree of conformity NCA/AMC ask us to impose.
C. Rationality of Reclamation Costs
Having concluded that the statute did not bar OSMRE’s departures from the corporate penalties regulation when it framed the individual penalties regulation, we consider, finally, NCA/AMC’s charges that the agency’s resort to reclamation costs and its omission of the point system were inadequately explained. When it issued the subsection (f) individual penalty regulations, OSMRE stated that, in its view, “the amount of money it will cost to abate the violation and/or reclaim the affected area” could serve as “[o]ne accurate indicator” of the extent of environmental damage. 53 Fed.Reg. at 3669. OSMRE then explained that using reclamation costs in assessing penalties appropriately advanced a statutory scheme in which individual penalties are an alternative mechanism of enforcing permittee compliance:
OSMRE intends in some instances to propose an individual civil penalty which equals or exceeds the cost of abating the violation under the theory that it would be more economical for the corporate official to order the corporate permittee to abate the violation than to pay the penalty....
53 Fed.Reg. at 3672. The agency thus justified the reclamation costs standard as an incentive for corporate officials to ensure compliance with SMCRA. We see nothing unreasonable here. Again, we cannot fault the agency, in face of the rationality of its position, simply because the regulations on corporate penalties do not similarly refer to reclamation costs.
D. Rationality of Omitting Point System
Relying once more on State Farm, NCA/AMC contend that OSMRE failed adequately to explain why the point system, although used in the regulations governing corporate penalties, was not used in the individual penalty regulations. The trade associations feature statements made in 1979 by then Acting Secretary James A. Joseph when the subsection (a) regulations issued. The Acting Secretary praised the point system as “the only adequate way to achieve rational and consistent assessments” and said that “[cjareful thought” had been given to the weights assigned the respective criteria. 44 Fed.Reg. at 15,305-06. NCA/AMC argue that the point system could have accounted for relevant differences between individuals and corporations, and underscore that the subsection (a) point system was based on MSHA regulations, which apply to corporate and individual penalties alike. See id.
When it promulgated the individual penalty regulations in 1988, OSMRE explained that, based on an examination of “existing rules and policies related to the assessment of civil penalties,” the point system
does not appear practical for, nor strictly applicable to, the assessment of individual civil penalties [and] does not give the Secretary sufficient flexibility to assess a penalty which fairly considers the particular actions or inactions of an individual. For example, [the corporate penalty regulations] consider the history of the per-mittee’s previous violations without respect to the individual’s involvement with them.
53 Fed.Reg. at 3664. The agency thus decided that the point system applicable to corporate violators was inappropriate for individual violators. The path the agency has taken on this point “may reasonably be discerned.” See State Farm, 463 U.S. at 43, 103 S.Ct. at 2867 (quoting Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974)). Substantial modifications would have been required to create a point system applicable to subsection (f) cases. In addition to modifying the history-of-previous-violations criterion, a point system for individuals would have to adjust for the different mens rea standard (individual violations, but not corporate violations, require knowing and willful misconduct). The agency’s new emphasis on reclamation costs would also require attention. See 53 Fed.Reg. at 3670 (“[T]he penalty assessed against the corporate per-mittee under the point system for the seriousness of the violation in many instances may not cover the actual cost to repair the damage to the environment.”).
OSMRE evidently decided, in light of its experience administering the subsection (a) corporate penalty provisions, that the point system was not well suited to individual violations. We cannot gainsay that experience and judgment. Nor can we impose on the agency a requirement of perfect consistency. OSMRE may eventually decide to alter the corporate regulations once the individual provisions have been tested. NCA/AMC surely do not urge that the agency embark on such a change now.
Conclusion
NCA/AMC have standing to challenge the individual penalty regulations because those regulations directly affect the interests of the associations’ corporate members. While we and the litigants would have been aided by a reasoned district court decision, considerations specific to this case counsel against a remand. Because the individual civil penalty regulations under review are not “arbitrary, capricious, or otherwise inconsistent with law,” the judgment of the district court in favor of the Secretary is
Affirmed.
. The agency first promulgated rules under subsection (a) as interim regulations in 1977, see 42 Fed.Reg. 62,702 (1977), codified at 30 C.F.R. § 723 (1991); the 1977 interim regulations did not differ in relevant respects from the permanent program regulations issued in 1979.
. On the history of this "citizen suit,” see Save Our Cumberland Mountains v. Lujan, 963 F.2d 1541, 1544-46 (D.C.Cir.1992).
. We are obliged to consider the question, to the extent that it implicates our Article III adjudicatory authority, despite the Secretary’s failure to raise a standing objection in the district court. See, e.g., National Coal Ass’n v. Hodel, 825 F.2d 523, 526 (D.C.Cir.1987).
. NCA/AMC point out that, as OSMRE acknowledged, the subsection (f) regulations were "modeled in part" on regulations of the Mine Safety and Health Administration, see 53 Fed.Reg. 3664, 3665 (1988), and the MSHA regulations provide for assessment conferences even though prepayments into escrow are not required. NCA/AMC also note that the legislative history of SMCRA reveals that Congress viewed the Federal Coal Mine and Safety Act (the successor of which is administered by MSHA) as a model for SMCRA’s enforcement scheme. See S.Rep. No. 128, 95th Cong., 1st Sess. 58 (1977) ("Generally the enforcement provisions of this bill have been modeled after the similar provisions of the [FCMSA].’’). OSMRE’s use of MSHA regulations as a model, however, did not require it to adopt each approach taken by MSHA.
NCA/AMC also suggest that omission of settlement conference procedures is inconsistent with Congress’ desire to have fair penalty procedures, but the trade associations’ quotation from SMCRA's legislative history is incomplete. See id. (”[T]he most effective reclamation occurs when sound performance standards go hand in hand with strong, equitable enforcement mechanisms.”).
. More than seven years separated the promulgation of the permanent corporate regulations and the issuance of proposed individual regulations; we note, in view of this interval, that developments in regulatory philosophy and methods and the accumulation of experience may legitimately form the basis for shifts in agency policy. See State Farm, 463 U.S. at 42, 103 S.Ct. at 2866; see also id. at 59, 103 S.Ct. at 2875 ("A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations.") (Rehnquist, J., dissenting in part).
. As we have pointed out in relation to assessment conferences, the agency's reliance on MSHA regulations as a guide for SMCRA rules did not require it to adopt the MSHA scheme lock, stock, and barrel. See supre note 4.
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:
|
sc_casedisposition
|
E
|
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.
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION v. HALEY
No. 02-1824.
Argued March 2, 2004
Decided May 3, 2004
R. Ted Cruz, Solicitor General of Texas, argued the cause for petitioner. With him on the briefs were Greg Abbott, Attorney General, Barry R. McBee, First Assistant Attorney General, and Danica L. Milios, Assistant Solicitor General.
Matthew D. Roberts argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Wray, and Deputy Solicitor General Dreeben.
Eric M. Albritton, by appointment of the Court, 540 U. S. 1044, argued the cause for respondent. With him on the brief was Jeffrey L. Bleich.
A brief of amici curiae urging reversal was filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Gary Feinerman, Solicitor General, Linda D. Woloshin and Domenica A. Osterberger, Assistant Attorneys General, and Dan Schweitzer, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Terry Goddard of Arizona, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Jon Bruning of Nebraska, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, and Patrick J. Crank of Wyoming.
Briefs of amici curiae urging affirmance were filed for Zachary W. Carter et al. by James Orenstein and Alison Tucher; and for James S. Lieb-man et al. by Edward C. DuMont.
Justice O’Connor
delivered the opinion of the Court.
Out of respect for finality, comity, and the orderly administration of justice, a federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default. We have recognized a narrow exception to the general rule when the habeas applicant can demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the underlying offense or, in the capital sentencing context, of the aggravating circumstances rendering the inmate eligible for the death penalty. Murray v. Carrier, 477 U. S. 478 (1986); Sawyer v. Whitley, 505 U. S. 333 (1992). The question before us is whether this exception applies where an applicant asserts “actual innocence” of a noncapital sentence. Because the District Court failed first to consider alternative grounds for relief urged by respondent, grounds that might obviate any need to reach the actual innocence question, we vacate the judgment and remand.
I
In 1997, respondent Michael Wayne Haley was arrested after stealing a calculator from a local Wal-Mart and attempting to exchange it for other merchandise. Respondent was charged with, and found guilty at trial of, theft of property valued at less than $1,500, which, because respondent already had two prior theft convictions, was a “state jail felony” punishable by a maximum of two years in prison. App. 8; Tex. Penal Code Ann. § 31.03(e)(4)(D) (Supp. 2004). The State also charged respondent as a habitual felony offender. The indictment alleged that respondent had two prior felony convictions and that the first — a 1991 conviction for delivery of amphetamine — “became final prior to the commission” of the second — a 1992 robbery. App. 9. The timing of the first conviction and the second offense is significant: Under Texas’ habitual offender statute, only a defendant convicted of a felony who “has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final,... shall be punished for a second-degree felony.” § 12.42(a)(2) (emphasis added). A second degree felony carries a minimum sentence of 2 and a maximum sentence of 20 yeárs in prison. § 12.33(a) (2003).
Texas provides for bifurcated trials in habitual offender cases. Tex. Code Crim. Proc. Ann., Art. 37.07, § 3 (Vernon Supp. 2004). If a defendant is found guilty of the substantive offense, the State, at a separate penalty hearing, must prove the habitual offender allegations beyond a reasonable doubt. Ibid. During the penalty phase of respondent’s trial, the State introduced records showing that respondent had been convicted of delivery of amphetamine on October 18,1991, and attempted robbery on September 9,1992. The record of the second conviction, however, showed that respondent had committed the robbery on October 15, 1991— three days before his first conviction became final. Neither the prosecutor, nor the defense attorney, nor the witness tendered by the State to authenticate the records, nor the trial judge, nor the jury, noticed the 3-day discrepancy. Indeed, the defense attorney chose not to cross-examine the State’s witness or to put on any evidence.
The jury returned a verdict of guilty on the habitual offender charge and recommended a sentence of I6V2 years; the court followed the recommendation. Respondent appealed. Appellate counsel did not mention the 3-day discrepancy nor challenge the sufficiency of the penalty-phase evidence to support the habitual offender enhancement. The State Court of Appeals affirmed respondent’s conviction and sentence; the Texas Court of Criminal Appeals refused respondent’s petition for discretionary review.
Respondent thereafter sought state postconviction relief, arguing for the first time that he was ineligible for the habitual offender enhancement based on the timing of his second conviction. App. 83, 87-88. The state habeas court refused to consider the merits of that claim because respondent had not raised it, as required by state procedural law, either at trial or on direct appeal. Id., at 107, 108. The state habeas court rejected respondent’s related ineffective assistance of counsel claim, saying only that “counsel was not ineffective” for failing to object to or to appeal the enhancement. Id., at 108. The Texas Court of Criminal Appeals summarily denied respondent’s state habeas application. Id., at 109.
In August 2000, respondent filed a timely pro se application for a federal writ of habeas corpus pursuant to 28 U. S. C. § 2254, renewing his sufficiency of the evidence and ineffective assistance of counsel claims. App. 110, 118-119; id., at 122, 124, 126-127. The State conceded that respondent was “correct in his assertion that the enhancement paragraphs as alleged in the indictment do not satisfy section 12.42(a)(2) of the Texas Penal Code.” Id., at 132, 140. Rather than agree to resentencing, however, the State argued that respondent had procedurally defaulted the sufficiency of the evidence claim by failing to raise it before the state trial court or on direct appeal. Id., at 142-144. The Magistrate Judge, to whom the habeas application had been referred, recommended excusing the procedural default and granting the sufficiency of the evidence claim because respondent was “ ‘actually innocent’ of a sentence for a second-degree felony.” Haley v. Director, Texas Dept. of Criminal Justice, Institutions Div., Civ. No. 6:00cv518 (ED Tex., Sept. 13, 2001), p. 10, App. to Pet. for Cert. 49a (citing Sones v. Hargett, 61 F. 3d 410, 419 (CA5 1995)). Because she recommended relief on the erroneous enhancement claim, the Magistrate Judge did not address respondent’s related ineffective assistance of counsel challenges. App. to Pet. for Cert. 50a-52a. The District Court adopted the Magistrate Judge’s report, granted the application, and ordered the State to re-sentence respondent “without the improper enhancement.” Id., at 36a-37a (Oct. 27, 2001).
The Court of Appeals for the Fifth Circuit affirmed, holding narrowly that the actual innocence exception “applies to noncapital sentencing procedures involving a career or habitual felony offender.” Haley v. Cockrell, 306 F. 3d 257, 264 (2002). The Fifth Circuit thus joined the Fourth Circuit in holding that the exception should not extend beyond allegedly erroneous recidivist enhancements to other claims of noncapital factual sentencing error: “[T]o broaden the exception further would ‘swallow’ the ‘cause portion of the cause and prejudice requirement’ and it ‘would conflict squarely with Supreme Court authority indicating that generally more than prejudice must exist to excuse a procedural default.’ ” Id., at 266 (quoting United States v. Mikalajunas, 186 F. 3d 490, 494-495 (CA4 1999)). Finding the exception satisfied, the panel then granted relief on the merits of respondent’s otherwise defaulted sufficiency of the evidence claim. In so doing, the panel assumed that challenges to the sufficiency of noncapital sentencing evidence are cognizable on federal habeas under Jackson v. Virginia, 443 U. S. 307 (1979). 306 F. 3d, at 266-267 (citing French v. Estelle, 692 F. 2d 1021, 1024-1025 (CA5 1982)).
The Fifth Circuit’s decision exacerbated a growing divergence of opinion in the Courts of Appeals regarding the availability and scope of the actual innocence exception in the noncapital sentencing context. Compare Embrey v. Hershberger, 131 F. 3d 739 (CA8 1997) (en banc) (no actual innocence exception for noncapital sentencing error); Reid v. Oklahoma, 101 F. 3d 628 (CA10 1996) (same), with Spence v. Superintendent, Great Meadow Correctional Facility, 219 F. 3d 162 (CA2 2000) (actual innocence exception applies in noncapital sentencing context when error is related to finding of predicate act forming the basis for enhancement), and Mikalajunas, supra (actual innocence exception applies in noncapital sentencing context where error relates to a recidivist enhancement). We granted the State’s request for. a writ of certiorari, 540 U. S. 945 (2003), and now vacate and remand.
II
The procedural default doctrine, like the abuse of writ doctrine, “refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.” McCleskey v. Zant, 499 U. S. 467, 489 (1991). A corollary to the habeas statute’s exhaustion requirement, the doctrine has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds. Wainwright v. Sykes, 433 U. S. 72, 81 (1977); Brown v. Allen, 344 U. S. 443, 486-487 (1953). But, while an adequate and independent state procedural disposition strips this Court of certiorari jurisdiction to review a state court’s judgment, it provides only a strong prudential reason, grounded in “considerations of comity and concerns for the orderly administration of criminal justice,” not to pass upon a defaulted constitutional claim presented for federal habeas review. Francis v. Henderson, 425 U. S. 536, 538-539 (1976); see also Fay v. Noia, 372 U. S. 391, 399 (1963) (“[T]he doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute”). That being the case, we have recognized an equitable exception to the bar when a habeas applicant can demonstrate cause and prejudice for the procedural default. Wainwright, supra, at 87. The cause and prejudice requirement shows due regard for States’ finality and comity interests while ensuring that “fundamental fairness [remains] the central concern of the writ of habeas corpus.” Strickland v. Washington, 466 U. S. 668, 697 (1984).
The cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice. Murray v. Carrier, 477 U. S. 478 (1986), thus recognized a narrow exception to the cause requirement where a constitutional violation has “probably resulted” in the conviction of one who is “actually innocent” of the substantive offense. Id., at 496; accord, Schlup v. Delo, 513 U. S. 298 (1995). We subsequently extended this exception to claims of capital sentencing error in Sawyer v. Whitley, 505 U. S. 333 (1992). Acknowledging that the concept of “ ‘actual innocence’ ” did not translate neatly into the capital sentencing context, we limited the exception to cases in which the applicant could show “by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” Id., at 336.
We are asked in the present case to extend the actual innocence exception to procedural default of constitutional claims challenging noncapital sentencing error. We decline to answer the question in the posture of this case and instead hold that a federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default.
This avoidance principle was implicit in Carrier itself, where we expressed confidence that, “for the most part, Victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard.’” 477 U. S., at 495-496 (quoting Engle v. Isaac, 456 U. S. 107, 135 (1982)). Our confidence was bolstered by the availability of ineffective assistance of counsel claims — either as a ground for cause or as a freestanding claim for relief — to safeguard against miscarriages of justice. The existence of such safeguards, we observed, “may properly inform this Court’s judgment in determining ‘[w]hat standards should govern the exercise of the habeas court’s equitable discretion’ with respect to procedurally defaulted claims.” Carrier, supra, at 496 (quoting Reed v. Ross, 468 U. S. 1, 9 (1984)).
Petitioner here conceded at oral argument that respondent has a viable and “significant” ineffective assistance of counsel claim. Tr. of Oral Arg. 18 (“[W]e agree at this point there is a very significant argument of ineffective assistance of counsel”); see also id., at 7 (agreeing “not [to] raise any procedural impediment” to consideration of the merits of respondent’s ineffective assistance claim on remand). Success on the merits would give respondent all of the relief that he seeks — i. e., resentencing. It would also provide cause to excuse the procedural default of his sufficiency of the evidence claim. Carrier, supra, at 488.
Contrary to the dissent’s view, see post, at 397 (opinion of Stevens, J.), it is precisely because the various exceptions to the procedural default doctrine are judge-made rules that courts as their stewards must exercise restraint, adding to or expanding them only when necessary. To hold otherwise would be to license district courts to riddle the cause and prejudice standard with ad hoc exceptions whenever they perceive an error to be “clear” or departure from the rules expedient. Such an approach, not the rule of restraint adopted here, would have the unhappy effect of prolonging the pendency of federal habeas applications as each new exception is tested in the courts of appeals. And because petitioner has assured us that the State will not seek to reincar-cerate respondent during the pendency of his ineffective assistance claim, Tr. of Oral Arg. 52 (“[T]he state is willing to allow the ineffective assistance case to be litigated before proceeding to reincarcerate [respondent]”), the negative consequences for respondent of our judgment to vacate and remand in this case are minimal.
While availability of other remedies alone would be sufficient justification for a general rule of avoidance, the many threshold legal questions often accompanying claims of actual innocence provide additional reason for restraint. For instance, citing Jackson v. Virginia, 443 U. S. 307 (1979), respondent here seeks to bring through the actual innocence gateway his constitutional claim that the State’s penalty-phase evidence was insufficient to support the recidivist enhancement. But the constitutional hook in Jackson was In re Winship, 397 U. S. 358 (1970), in which we held that due process requires proof of each element of a criminal offense beyond a reasonable doubt. We have not extended Winship’s protections to proof of prior convictions used to support recidivist enhancements. Almendarez-Torres v. United States, 523 U. S. 224 (1998); see also Apprendi v. New Jersey, 530 U. S. 466, 488-490 (2000) (reserving judgment as to the validity of Almendarez-Torres); Monge v. California, 524 U. S. 721, 734 (1998) (Double Jeopardy Clause does not preclude retrial on a prior conviction used to support recidivist enhancement). Respondent contends that Almendarez-Torres should be overruled or, in the alternative, that it does not apply because the recidivist statute at issue required the jury to find not only the existence of his prior convictions but also the additional fact that they were sequential. Brief for Respondent 30-31. These difficult constitutional questions, simply assumed away by the dissent, see post, at 397 (citing Jackson, supra, and Thompson v. Louisville, 362 U. S. 199 (1960)), are to be avoided if possible.
To be sure, not all claims of actual innocence will involve threshold constitutional issues. Even so, as this case and the briefing illustrate, such claims are likely to present equally difficult questions regarding the scope of the actual innocence exception itself. Whether and to what extent the exception extends to noncapital sentencing error is just one example. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
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_geniss
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
LOCAL 257, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, et al., Appellants, v. William J. GRIMM and Carolyn J. Grimm, Appellees.
No. 85-1864.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 17, 1986.
Decided March 11, 1986.
James I. Singer, St. Louis, Mo., for appellants.
John W. Ellinger, Jefferson City, Mo., for appellees.
Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and ROSS, Circuit Judge.
FLOYD R. GIBSON, Senior Circuit Judge.
Appellants, the trustees of several employee benefit trust funds, appeal from the district court’s dismissal of their action against appellees, William J. Grimm, and his wife, Carolyn Grimm (the Grimms). In their action, tried without a jury, appellants sought to recover delinquent contributions to the trust funds allegedly required by collective bargaining agreements, along with liquidated damages, interest, attorney’s fees, and costs. In entering judgment for the Grimms, the district court found that they were not bound by the provisions of any of the labor agreements in question. Local 257, International Brotherhood of Electrical Workers v. Grimm, 613 F.Supp. 157, 159-60 (E.D.Mo.1985). We reverse the judgment of the district court and remand for entry of a judgment against William J. Grimm as set forth herein and for a determination of whether Carolyn Grimm was a partner or employer and thus bound by the agreements along with William Grimm.
I. FACTS
Grimm Electric (Grimm Electric) was incorporated as an electrical contracting firm in Jefferson City, Missouri in 1974, with William and Carolyn Grimm as president and vice-president, respectively. The Grimms were also listed on the state registration report as the corporation’s sole directors. In 1975 and 1976, Grimm Electric filed annual registration reports, signed by Carolyn Grimm, with the Missouri Secretary of State, but forfeited its corporate charter on January 1, 1978 for failure to file its 1977 annual registration report. After forfeiture, however, Carolyn and William Grimm continued to operate Grimm Electric as an electrical construction business.
In October 1979 all of the electricians of Grimm Electric became members of Local 257, International Brotherhood of Electrical Workers (Local 257), a labor union. The St. Louis Chapter, Central Missouri Division, National Electrical Contractors Association (ÑECA), a trade association representing electrical construction employers in eastern Missouri, engages in collective bargaining for employers with Local 257. One of the primary contractual obligations of an employer under the collective bargaining agreements negotiated between ÑECA and Local 257 is the payment of contributions to the employee benefit trust funds of which appellants are trustees. Neither William J. Grimm nor Carolyn Grimm was ever a member of ÑECA. As owner of Grimm Electric, however, William J. Grimm signed a document entitled “Letter of Assent-A” on October 12, 1977, which is the standard form used by the . International Brotherhood of Electrical Workers for the delegation of bargaining rights by employers. The Letter of Assent-A signed by William Grimm reads as follows:
In signing this letter of assent, the undersigned firm does hereby authorize St. Louis Chapter, Central Missouri Division, ÑECA as its collective bargaining representative for all matters contained in or pertaining to the current approved inside labor agreement between the St. Louis Chapter, Central Missouri Division, National Electrical Contractors Association and Local Union 257, IBEW. This authorization, in compliance with the current approved labor agreement, shall become effective on the 12th day of October, 1977. It shall remain in effect until terminated by the undersigned employer giving written notice to the St. Louis Chapter, Central Missouri Division, ÑECA and to the Local Union at least one hundred fifty (150) days prior to the then current anniversary date of the aforementioned labor agreement.
The collective bargaining agreement between ÑECA and Local 257 in effect at the time William Grimm signed the Letter of Assent-A was to cover the two year period from March 1, 1977 through February 28, 1979, and from year to year thereafter unless changed or terminated as therein provided. The district court found that no evidence existed as to whether the 1977 collective bargaining agreement remained in effect after 1979, but that at any rate new labor agreements between NECA and Local 257 came into effect in March 1981, March 1983, and March 1984. Grimm, 613 F.Supp. at 159.
The parties have stipulated that from the time the Letter of Assent-A was signed until January 1, 1982, Grimm Electric paid trust fund contributions at the increased rates required by successive collective bargaining agreements negotiated between ÑECA and Local 257. From January 1, 1982 until February 28, 1984 Grimm Electric employed electricians doing both residential and commercial work, but did not report these employees to Local 257 or to the trust funds. In fact, Grimm Electric filed monthly reports with the trust funds from January 1982 through June 1983 showing that the company had no employees. Grimm Electric stopped filing such reports in June 1983, after Carolyn Grimm phoned Local 257 to ask whether the company needed to file reports when it had no employees.
Appellants filed this suit in June 1984, seeking the contributions allegedly owed to the trust funds for the period from January 1982 until the filing of the suit. They alleged that the last sentence of the Letter of Assent served as an “evergreen clause,” automatically renewing the employer’s delegation of bargaining authority to NECA, unless and until the employer gave the required 150 days written notice of termination. The district court held, however, that by signing the Letter of Assent-A William Grimm only assigned bargaining rights for the labor agreement in effect at the time the Letter of Assent-A was executed. On appeal, appellants contend that the district court wrongly concluded that the Letter of Assent-A was not a continuing delegation of bargaining authority.
II. INTERPRETATION OF LETTER OF ASSENT-A
In reviewing the district court’s decision, we note that the interpretation of an unambiguous, written contract is a matter of law not subject to the “clearly erroneous” standard of review. See Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 519 (8th Cir.) (quoting Standard Title Insurance Co. v. United Pacific Insurance Co., 364 F.2d 287, 289 (8th Cir.1966)); cert. denied, — U.S. —, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984); UAW, Local No. 716 v. General Electric Co., 714 F.2d 830, 832 (8th Cir.1983); Barrett v. Safeway Stores, Inc., 538 F.2d 1311, 1313 (8th Cir. 1976). At issue in this case, therefore, is whether the district court erred in interpreting the Letter of Assent-A to cover only the collective bargaining agreement then in effect. After careful review of the Letter of Assent-A, we conclude that the district court did so err.
Our conclusion that the Letter of Assent-A provides a continuous delegation of Grimm Electric's bargaining rights until proper termination is based on the wording of that document. In particular, our judgment rests on a reading of the last sentence of the Letter of Assent-A, the so-called evergreen clause: “It [the employer’s delegation of bargaining authority] shall remain in effect until terminated by the undersigned employer giving written notice to [NECA] and to the Local Union at least one hundred fifty (150) days prior to the then current anniversary date of the aforementioned approved labor agreement (emphasis added).” We think it clear from these words that the employer’s assignment of bargaining authority under the Letter of Assent-A is ah ongoing delegation, ending only on formal termination. Were this delegation of authority to end concomitantly with the collective bargaining agreement in effect at the time of execution of the Letter of Assent-A, no need would exist for such a termination provision. Further, contrary to the Grimms’ assertion that the document does not refer to any future collective bargaining agreements, the phrase “then current” plainly points to whatever agreement may be in existence when the delegation is terminated at a future point in time. Our reading of the Letter of Assent-A is bolstered by decisions of other circuit courts interpreting the same language. See NLRB v. Black, 709 F.2d 939, 940-41 (5th Cir.1983) (per curiam); Nelson Electric v. NLRB, 638 F.2d 965, 967-68 (6th Cir.1981) (per curiam); Local 2, International Brotherhood of Electrical Workers v. Gerstner Electric, Inc., 614 F.Supp. 874, 876 (E.D.Mo.1985) (“[T]he only reasonable interpretation of defendant’s Letter of Assent is that it authorizes the Missouri Valley Chapter to bargain for defendant under whichever collective bargaining contract is currently approved until defendant terminates authorization”) (Emphasis in original). Cf .Arco Electric Co. v. NLRB, 618 F.2d 698, 699 (10th Cir.1980) (In discussing the difference between the standard letters of assent “A” and “B,” the court states that the “A” assent continues authorization until termination).
In addition to concluding that the Letter of Assent-A provides a continuous delegation of Grimm Electric’s bargaining rights until proper termination, we also hold that Grimm Electric did not properly terminate that delegation and is therefore liable for the missed payments to the trust funds. We find no merit in the Grimms’ argument that Grimm Electric was a party to a prehire agreement. Even assuming arguendo that Grimm Electric was bound to a prehire agreement, mere noncompliance with the contract does not in itself suffice to establish repudiation. Contractors Health & Welfare Plan v. Harkins Construction & Equipment Co., 733 F.2d 1321, 1326 (8th Cir.1984). Further, the letter dated November 16, 1983 sent by William Grimm to Local 257 did not serve to cancel the labor agreement effective February 29, 1984 as the Grimms allege. Even assuming the letter was sent on November 16, 1983, it fell short of fulfilling the termination procedure set out in the Letter of Assent-A, which called for written notice by the employer to ÑECA and Local 257 at least 150 days prior to the anniversary date of the labor agreement, which in this case would be February 28, 1984. The Grimms had no right to cancel the labor agreement, which was between ÑECA and Local 257.
III. CONCLUSION
In conclusion, we reverse the judgment that Grimm Electric was not subject to the provisions of the collective bargaining agreements after December 1981. On remand the district court should determine whether Carolyn Grimm should be held jointly liable with William Grimm for the delinquent contributions, as an employer under ERISA or as an officer or director of Grimm Electric. In addition, because of its conclusion that the Grimms were not liable for delinquent contributions, the district court did not decide which projects performed by Grimm Electric’s electricians were covered by the Letter of Assent-A, or which contribution rate should be applied to their work. Because the record evidence on these issues is incomplete or conflicting, these questions should be placed in issue on remand.
. We do not view the Eleventh Circuit’s holding in McDonald v. Hamilton Electric, Inc., 666 F.2d 509, 512-13 and n. 6 (11th Cir.1982), as contrary to our determination. At issue in McDonald was whether various letters of assent signed by a company bound it to an industry promotion fund provision subsequently negotiated by NECA and the labor union, when no such provision had existed in the collective bargaining agreements to which the company had expressly assented. The court held that because the company had authorized NECA as its bargaining representative only "for all matters contained in or pertaining to the current approved" labor agreement, the company "could not be bound by the adoption of a permissive subject of bargaining not provided for by the assented to labor agreement.” 666 F.2d at 512-13. In the instant case, however, the employee benefit trust funds were mandatory subjects of bargaining provided for by the 1977-1979 agreement to which Grimm Electric expressly assented.
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_counsel1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Appellee, v. David EBERHARDT, Appellant. UNITED STATES of America, Appellee, v. Thomas LEWIS, Appellant. UNITED STATES of America, Appellee, v. Philip BERRIGAN, Appellant. UNITED STATES of America, Appellee, v. James MENGEL, Appellant.
Nos. 12471, 12492, 12499, 12503.
United States Court of Appeals Fourth Circuit.
Argued June 10, 1969.
Decided Oct. 15, 1969.
See also D.C., 283 F.Supp. 336, 417 F.2d 1002.
Fred E. Weisgal, Baltimore, Md. (court-appointed counsel), for appellants.
Barnet D. Skolnik, Asst. U. S. Atty. (Stephen H. Sachs, U. S. Atty., and Donald E. Sharp, Asst. U. S. Atty., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and WINTER, Circuit Judges.
SOBELOFF, Circuit Judge:
For approximately one week the four appellants, Father Philip Berrigan, Thomas Lewis, David Eberhardt and Reverend James Mengel, planned the acts for which they stand convicted. Then on October 26, 1967, they extracted a small quantity of blood from each of them and placed it in a number of pint-sized bottles. On the morning of October 27, they added a quantity of animal blood so as to increase the total volume to approximately three pints. They then proceeded to a location directly across the street from the Customs House in Baltimore, Maryland, where they met members of the press who had been informed in advance by the appellants that a newsworthy event was to take place. The appellants distributed to the newsmen a jointly prepared press release concerning what they were about to do.
Instructing the press to follow them after the lapse of one minute, they entered the Customs House. Once inside the draft board offices, the appellants Ber-rigan, Lewis and Eberhardt walked beyond the counter, opened cabinets containing Selective Service files and poured the prepared blood mixture over the documents. These three then joined appellant Mengel, who had been engaged in distributing Bibles in the office reception area while the blood pouring took place. They then waited for law enforcement authorities to arrive.
A jury in the United States District Court for the District of Maryland convicted Father Berrigan, Lewis and Eber-hardt of (1) causing willful injury to property of the United States to an amount in excess of $100, (2) willful mutilation of records filed in a public office of the United States, and (3) willfully hindering the administration of the Military Selective Service Act. Appellant Reverend Mengel was convicted under the same statutes as an aider and abettor.
The appellants base their appeal upon five asserted errors in the District Court proceedings.
I
The defendants were permitted to present evidence that their actions were taken pursuant to a good faith belief in the immorality and illegality of the Vietnam War, but they were not allowed to present expert testimony as to the reasonableness of these beliefs. They maintained below and in this court that because of these beliefs their actions were justified. The Government does not contest the sincerity of the appellants’ belief that the United States involvement in Vietnam is illegal and immoral. However, the trial court refused to treat this belief as a possible negation of criminal intent. We find no error in the trial court’s ruling. For a more complete discussion of this issue, see United States v. Berrigan, et al., 4 Cir., 417 F.2d 1002, decided this day.
II
Appellant Rev. James Mengel, who did not participate in the actual splattering of blood on the Selective Service files, submits a special argument that since the count charging a conspiracy between the four co-defendants was dropped, all other charges against him should also have been abandoned because his participation was insufficient to sustain the conviction as an aider and abettor.
This argument is without foundation, for the record reveals sufficient evidence to classify Mengel as an aider and abettor in the offenses charged. If he had done no more than stand by silently while the others acted, without himself actually participating in the preparations, then he could not be considered an aider or abettor, even if he sympathized with their action. However, he was an actual participant, lending physical as well as moral support to his associates. He assisted in the planning of the incident, contributed his blood, signed the press release and accompanied the others to the Customs House.
Mengel’s mere giving of blood with the knowledge that it would be used for an unlawful purpose would be enough to convict him as an aider and abettor. Just as one may not supply a weapon to another with knowledge that it will be used to commit a crime, here the appellant could not with impunity give his blood knowing the unlawful purpose to which it would be put. His total course of action makes it clear that he was integrally a participant in the blood-pouring protest.
Ill
All of the appellants argue that the evidence fell short of showing a violation of any of the statutes mentioned in the indictment. With regard to 18 U.S.C. § 1361, they assert that the damage did not exceed $100, in which case the maximum imprisonment would be one year. The proof that the damage did exceed $100 was made by calculating the cost of labor expended in restoring the damaged records to their former condition. Surely this method of computation is reasonable and proper for the jury to consider.
It is protested on behalf of all the appellants that the evidence failed to show a violation of 50 App. U.S.C. 462(a). Again, the evidence supports a finding that the appellants “hinder [ed] or interfered]” with the operation of the Selective Service System “or attempted to do so.” As the record shows, many Government employees were disrupted in their work both during and after the bloodpouring. Among other results, one of the local draft boards was unable to have an induction call for several months after the incident. Restoration of the damaged records involved the expenditure of a number of man hours which would otherwise have been devoted to the normal business of the boards. The value of this time was well in excess of the $100 minimum required to make the defendants amenable to the higher penalty.
Also incorrect is the appellants’ position that the statute requires a showing of “force or violence.” The statute clearly states that the hindering or interfering may be accomplished by “force or violence or otherwise.” The words “or otherwise” were added by section 12 of the Selective Service Act of 1948 evincing a plain intention to relieve the prosecution from the obligation to prove the use of agressive force or violence.
IV
The appellants complain that the trial judge’s refusal of a continuance of the trial until the end of hostilities in Vietnam, or at least for six months, denied them a fair trial. They claim that widespread prejudice existed in the community against anti-war protestors, and this prejudice, in the context of a trial for political civil disobedience, would likely focus upon them in a particularly severe fashion.
To support these allegations the defendants submitted evidence of a poll which they had taken to show the prevalence of community prejudice against persons protesting the war. They also offered witnesses who testified that they had encountered personal hostility in their dissentient activities against the war. The witnesses were permitted to express the opinion that hostility toward dissenters was general throughout the nation.
However, the results of the poll and the other testimony of defense witnesses did not convincingly establish that the prejudice against war protestors was so obdurate as to make unlikely the selection of a fair jury after extensive voir dire. Over 100 veniremen were individually and painstakingly examined, and more than 60 challenges for cause were upheld. Furthermore, the defendants’ expert witness, Dr. Peter H. Rossi, whose qualifications were not challenged, testified that the poll showed an ambivalent community attitude toward political protestors, the same individuals feeling prejudice some days and entertaining more tolerant attitudes other days. In this state of the record, the trial judge certainly cannot be said to have abused his discretion in deciding (1) that a continuance was not necessary to protect the defendants’ right to a fair trial and (2) that a fair jury could be selected through carefully conducted voir dire. The jury was selected and the trial proceeded.
The trial was interrupted for five days due to the race riots in Baltimore following the assassination of Dr. Martin Luther King, Jr., and the appellants press upon us that a mistrial should have been declared. If it had appeared reasonably likely that the jury might impute the acts of the race rioters to war protestors, or even that in the sight of the community race rioters and antiwar protestors are indistinguishable, then this argument might have some merit. However, though suggested in argument, there was no evidence to prove this relationship. Moreover, when the trial resumed, the judge made careful inquiry of the jurors to ascertain whether the events of the preceding several days would have any effect upon their ability to try the case in accordance with their oath. From the responses the judge meticulously elicited from the jurors, he was satisfied that the events in question would not affect their impartiality. There is nothing to suggest that the jurors were inflamed by passion or prejudice against war resistors, or that any of them felt such a degree of resentment or impatience as to impair unbiased judgment. “Appellate courts should be slow to impute to juries a disregard of their duties * * Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485, 53 S.Ct. 252, 77 L.Ed. 439.
V
Finally, the appellants attack the sentences imposed upon them. They contend that all of the appellants received sentences unreasonably severe and disproportionate to the acts they committed and to their background. They insist that this severity was visited upon them in order to punish the “speech” element of their conduct, which is protected by the First Amendment. The contention is not soundly posited. If one elects to engage in conduct as symbolic speech he must limit himself to lawful conduct; he is not entitled to commit criminal acts with impunity, even in order to communicate ideas. The trial judge is vested with broad discretion in sentencing. If the sentence he meets out is within statutory limits, it will not, in the absence of exceptional circumstances, be reviewed on appeal. United States v. Pruitt, 341 F.2d 700 (4th Cir. 1965); United States v. Martell, 335 F.2d 764 (4th Cir. 1965).
After the trial of this case, but before sentence, appellants Berrigan and Lewis participated in another extreme violation — the destruction by burning of draft board records in Catonsville, Maryland. See United States v. Berrigan, et al., 417 F.2d 1002, decided this day. The appellants point out that Father Berrigan and Thomas Lewis were given longer sentences than the other defendants in this case, and they attribute the disparity to the trial judge’s purpose to punish these two not alone for the acts for which they were convicted before him, but also for their subsequent war protesting activities.
When the District Judge passed sentence, he was of course aware of the episode in which some of the defendants had become involved since the trial over which he presided. In fixing sentence he certainly was not obliged to ignore the later event. Subsequent misconduct has evidentiary value in determining the period of confinement anticipated to be required to effect the purposes of the sentence. Yet it is true that he could sentence only for the offense of which the defendants, had been convicted, for if he undertook to penalize them for the other offense as well, it would run afoul of due process, if not double jeopardy. State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct. 374, 91 L.Ed. 422 (1947); Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873). Precisely what passed through the judge’s mind is purely speculative and we have nó reason to think that the judge undertook to impose a penalty for the second offense. However, we consider it fair and in the interest of justice in this instance to remand the case to the District Court for further consideration of the .sentences, and the judge may determine in his discretion whether the sentences should be reduced in the light of our statement of the law, or for any other reason for which the judge may reduce sentences under Rule 35, Fed.R.Crim.P.
Therefore, the convictions are affirmed and the case is remanded for further consideration of the sentences.
. Title 18 U.S.C. § 1361 provides:
Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, shall be punished as follows:
If the damage to such property exceeds the sum of $100, by a fine of not more than $10,000 or imprisonment for not more than ten years, or both; if the damage to such property does not exceed the sum of $100, by a fine of not more than $1000 or by imprisonment for not more than one year, or both.
Title 18 U.S.C. § 2071 provides:
(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined not more than $2,000 or imprisoned not more than three years, or both.
Title 50 App.U.S.C. § 462(a) provides in pertinent part:
* * * or any person or persons who shall knowingly hinder or interfere or attempt to do so in any way, by force or violence or otherwise, with the administration of this title (said sections) or the rules or regulations made pursuant thereto, or who conspires to commit any one or more of such offenses, shall, upon conviction in any district court of the United States of competent jurisdiction be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment, * * *.
. Title 18 U.S.C. § 2 provides:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, or induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
. Although defendants assert their belief in the illegality of the Vietnam War, they expressly state in their brief that “we do not urge that the court should or could have undertaken any determination of the legality of the Vietnam War.” (Brief for Appellants, p. 19).
. Nye and Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949).
. Father Berrigan and Thomas Lewis were sentenced to imprisonment for six years under this section. David Eber-liardt was sentenced to three years under this section and James Mengel was committed to the custody of the Attorney General for study and report, pursuant to Title 18 U.S.C. §. 4208(b). All of these sentences were within the statutory limit of ten years if the damage exceeded $100; but if the damage was less the maximum permissible prison term could not exceed one year.
. 63 Stat. 622.
. See, Report of the Administrative Committee on Sentencing and Review, American Bar Association Project on Minimum Standards for Criminal Justice (Approved 1968) recommending appellate review of sentences. In the 90th Congress a measure authorizing appellate review of sentences was passed by the Senate, but was not reported out of the House Committee. At the present session Senator Hruska introduced a similar bill (S. 1561) which is now pending before the Subcommittee on Criminal Laws and Procedures.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
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.
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: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_appel1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Rufus Lee AVERHART, Plaintiff-Appellant, v. Albert TUTSIE, Parole Board Chairman, et al., Defendants-Appellees.
No. 78-2621.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 25, 1980.
Decided April 9, 1980.
William E. Marsh, Legal Service Organization, Indianapolis, Ind., for plaintiff-appellant.
David A. Arthur, Asst. Atty. Gen., Indianapolis, Ind., for defendants-appellees.
Before SPRECHER and WOOD, Circuit Judges, and BUA, District Judge.
Honorable Nicholas J. Bua, District Judge for the Northern District of Illinois, is sitting by designation.
SPRECHER, Circuit Judge.
The primary issues raised in this appeal are (1) whether the Due Process Clause of the Fourteenth Amendment mandates more stringent procedures for parole release determinations than those followed by the Indiana Parole Board, and (2) whether the Indiana Administrative Adjudication Act (A.A.A.), Ind.Code § 4-22-1-1, et seq., applies to Parole Board proceedings. We hold that neither the Due Process Clause nor the Indiana A.A.A. applies to parole release determinations by the Indiana Parole Board.
I
Plaintiff, Rufus Averhart, is presently incarcerated in the Indiana State Prison pursuant to a conviction for involuntary manslaughter. On May 6, 1974, he was sentenced to a term of not less than two nor greater than twenty-one years, with 494 days credit for time spent in jail prior to sentencing. On September 27, 1978, plaintiff filed a pro se suit against the members of the Indiana Parole Board, requesting both injunctive and monetary relief under 42 U.S.C. § 1983.
Before filing suit, plaintiff had been denied parole five times, each time because of the seriousness of his offense with the additional reason on one occasion of unsatisfactory institutional conduct. Other inmates who had been denied parole because of the “seriousness or circumstances of the offense” filed briefs in this court as amici curiae. Plaintiff and amici argue that the procedures and practices of the Indiana Parole Board deprived them of due process of law as well as the rights to which they are entitled under the Indiana Administrative Adjudication Act. The district court found that the Indiana A.A.A. did not apply to Parole Board proceedings. Moreover, it concluded that while due process required certain safeguards in parole release proceedings, the Indiana parole procedure satisfied due process.
II
We will first consider whether the strictures of due process apply to the parole release procedures of the Indiana parole system. It is axiomatic that before due process protections can apply, there must first exist a protectible liberty or property interest. See, e. g., Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705-2706, 33 L.Ed.2d 548 (1972). Just last term, after the decision by the district court in this case, the United States Supreme Court considered whether inmates have a general, constitutionally protected interest in being conditionally released on parole before the expiration of a valid sentence. In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Court concluded that an inmate does not have a protectible expectation of parole unless that expectation is created by a state statute. According to the Court, a validly obtained conviction, with all its procedural safeguards, extinguishes a convict’s liberty interest in release. A state is under no constitutional obligation to create a parole system, and even when it does, the mere possibility of parole does not a fortiori result in a protectible expectation of release. Rather, the state statute must be phrased in such a way that it creates a real expectation of and not just a unilateral hope for parole. 442 U.S. at 7-8, 11-12, 99 S.Ct. at 2103-2104, 2105-2106.
The Court suggested that a determination by the highest court of a state would be important in ascertaining the scope of any interest a statute was intended to afford state prisoners. Id. at 12, 99 S.Ct. at 2106. Since the state courts of Nebraska had not considered the question, the Court made an independent determination. The Greenholtz Court found that Nebraska’s parole statute did create a protectible expectation of parole, but it emphasized that the Nebraska statute had unique structure and language. Thus, whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis. The Court identified as crucial the language of the statute which mandated that the Nebraska Parole Board shall grant parole to an inmate unless one of four enumerated negative determinations are made. Id. at 11-12, 99 S.Ct. at 2105-2106.
Unlike the Supreme Court in Greenholtz, we have the benefit of a decision by the highest court of Indiana interpreting the scope of interest created by the Indiana parole statute. Ind.Code §§ 11-1-1-7 to 11-1-1-14 & 11-1-1-26. In Murphy v. Indiana Parole Board, Ind., 397 N.E.2d 259 (1979), the Indiana Supreme Court distinguished its state statute from the Nebraska statute:
Our parole release statute creates no expectancy of release as envisioned in the Nebraska statutory scheme; rather, our Legislature has invested the Parole Board with almost total discretion in such matters.
397 N.E.2d at 263 [emphasis added].
Since “the sufficiency of the claim of entitlement must be decided by reference to state law,” Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2076, 48 L.Ed.2d 684 (1976) [footnote omitted], and since we have an authoritative interpretation by the Indiana Supreme Court of the rights created by its state’s parole statute, see Bishop, supra, 426 U.S. at 345, 96 S.Ct. at 2077; Greenholtz, supra, 422 U.S. at 12, 99 S.Ct. at 2106, we hold that Indiana state prisoners do not have a protectible interest in being paroled. We do not hear plaintiff to complain that the Parole Board did not comply with the procedures set out in the statute; rather, he argues that the procedures do not comport with due process. Because of our holding that the Indiana parole statute does not create a constitutionally protectible interest, plaintiff’s procedural due process arguments must fail.
Ill
Plaintiff and amici also argue that the Indiana Administrative Adjudication Act, Ind.Code § 4-22-1-1 et seq., prescribes certain procedures which must be followed by the Parole Board. Without discussion, the district court concluded that the Indiana A.A.A. expressly exempted from its coverage the Indiana Parole Board.
Because no Indiana appellate court has specifically decided whether the A.A.A. is applicable to Parole Board proceedings, defendants argue that the district court should have abstained from deciding the question. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Amici correctly point out, however, that abstention is the exception rather than the rule and that Pullman -abstention “contemplates that deference to state court adjudication only be made where the issue of state law is uncertain.” Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50 (1965). Amici further argue that it is quite clear under Indiana law that the A.A.A. applies to parole proceedings. While we agree with amici that abstention is not required in this case, we disagree with their interpretation of Indiana law. We hold that the Indiana A.A.A. does not apply to Parole Board proceedings.
The A.A.A. was enacted in 1947 and since that time, has expressly excluded from its coverage reformatory or penal institutions. Ind.Code § 4-22-1-2. Because each penal institution had a separate parole board until 1961, defendants argue that parole proceedings were expressly excluded from A.A.A. coverage. We agree.
In 1961, however, the state-wide Indiana Parole Board was created to replace the individual boards within each penal institution. Amici strongly contend that the State Parole Board no longer falls under the reformatory or penal institution exception in the A.A.A., particularly in light of the Indiana Supreme Court decision in Indiana State Personnel Board v. Parkman, 252 Ind. 44, 245 N.E.2d 153 (1969).
The relevant facts of Parkman are as follows. The Hospital Administrator at the Indiana State Prison was suspended and ultimately fired. He appealed to the Indiana State Personnel Board, which upheld his dismissal; he then appealed the decision of the Personnel Board by filing suit in state court. The Indiana Supreme Court held that the suit should have been dismissed because the former administrator had not followed the proper appellate procedures set out in the A.A.A. Amici in the case at bar rely heavily on the following language in Parkman:
That the person affected by a decision of the Personnel Board is an employee of an exempt agency does not mean that the Personnel Board or its decision is thereby exempted from the provisions of the Administrative Adjudication Act.
245 N.E.2d at 156. Because we can readily distinguish the Indiana Parole Board from the State Personnel Board, we do not find Parkman controlling.
In reaching its decision, the Parkman court relied on a section of the A.A.A. which provided:
All general or special laws or parts of laws in conflict herewith are hereby specifically repealed .
Ind.Code § 4-22-1-28. Since Parkman had relied on procedures outlined in a statute in force before the enactment of the A.A.A., and since those procedures were not “uniform” with A.A.A. procedures, the court concluded that the express intent of the A.A.A. was to supersede the old conflicting statute. 245 N.E.2d at 155. The Parole Board procedures in this case present an entirely different situation.
As discussed above, at the time the A.A.A. was passed, parole boards were expressly excluded from its coverage because they were departments within exempt reformatories and penal institutions. Therefore, unlike the superseded procedures considered in Parkman, the procedures of the individual parole boards were specifically exempted, not “specifically repealed,” by the passage of the A.A.A.
The question remains, however, whether the replacement of the individual prison parole boards with the state-wide Parole Board in 1961 brought the parole procedures within the coverage of the A.A.A. We think not. In creating the Indiana State Parole Board, the Legislature outlined certain procedures to be followed in making parole determinations. From its inception, the Parole Board has followed only the procedures in the parole statute, assuming that it was exempt from the A.A.A. For nearly twenty years, the Indiana Legislature has acquiesced in the Board’s procedures. Legislative silence should not by itself be determinative, nor should it always be significant; in this case, however, and in light of the history of the Parole Board and the A.A.A., we find it strong support for holding the Parole Board exempt from the A.A.A. See State ex rel. O’Neal v. Cros, Ind.App., 378 N.E.2d 10, 13 (1978).
IV
Plaintiff also argues that the Double Jeopardy Clause of the Fifth Amendment prohibits the Board from relying on the seriousness of his offense as a reason for denying him parole. This argument clearly must fail.
The Double Jeopardy Clause protects a defendant in a criminal proceeding against multiple punishment or repeated prosecutions for the same offense, U. S. v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976); its protections are not triggered by the denial of parole. Rather than constituting another punishment for the same offense, the denial of parole merely perpetuates the status quo: the prisoner remains incarcerated under a validly imposed sentence. Roach v. Board of Pardons and Paroles, 503 F.2d 1367, 1368 (8th Cir. 1974); Carlisle v. Bensinger, 355 F.Supp. 1359, 1362 (N.D.Ill.1973). Indeed, in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) , the Supreme Court recognized that parole determinations must necessarily in-elude the seriousness of the offense. Id. at 15, 99 S.Ct. at 2107.
We affirm the result reached by the district court with the modifications discussed above.
. The Nebraska statute reads in pertinent part:
Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:
(a) There is a substantial risk that he will not conform to the conditions of parole;
(b) His release would depreciate the seriousness of his crime or promote disrespect for law;
(c) His release would have a substantially adverse effect on institutional discipline; or
(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.
Neb.Rev.Stat. § 83-1,114(1) [emphasis added],
. See note 1 supra.
. The Indiana statute reads in pertinent part:
Paroles — Procedure—Rules and regulations — Not applicable to persons imprisoned for misdemeanor.—
(a) The Indiana parole board is authorized to release on parole, pursuant to the laws of Indiana, any person confined in any penal or correctional institution in this state except persons under sentence of death. It shall conduct hearings at each correctional institution at such time as may be necessary for a full study of the cases of prisoners eligible for release on parole and to determine when and under what conditions and to whom parole may be granted. All paroles shall issue upon order of the board, duly adopted. Notwithstanding this subsection, prisoners who are sentenced under IC 35-50 [35-50-1-1 — 35-50-6-6] shall be released on parole in accord with IC 35-50[35-50-l-l — 35-50-6-6].
(b) Within one [1] year after his admission and at such intervals thereafter as it may determine, the Indiana parole board shall secure and consider all pertinent information regarding each prisoner, except prisoners under sentence of death, including the circumstances of his offense, his previous social history and criminal record, his conduct, employment and attitude in prison, and the reports of such physical and mental examinations as have been made.
(c) Before ordering the parole of any prisoner, the Indiana parole board shall have the prisoner appear before it, and shall interview him. A parole shall be ordered only for the best interest of society, not as an award of clemency; it shall not be considered to be a reduction of sentence or pardon. A prisoner shall be placed on parole only when arrangements have been made for his proper employment, or for his maintenance and care, and only when the Indiana parole board believes that he is able and willing to fulfill the obligations of a law-abiding citizen. Notwithstanding this subsection, prisoners who are sentenced under IC 35-50 [35-50-1-1— 35-50-6-6] shall be released on parole in accord with IC 35-50.
(d) Every prisoner while on parole shall remain in the legal custody of the warden or superintendent of the institution from which he was paroled but shall be subject to the orders of the Indiana parole board.
(e) The Indiana parole board may adopt such other rules not inconsistent with law as it may deem proper or necessary, with respect to the'.dbnduct of parole hearings or conditions to. be imposed upon parolees. Whenever an order for parole is issued it shall recite the conditions thereof.
(f) This chapter does not apply to persons committed to imprisonment for commission of a misdemeanor. Such persons shall be discharged by the state agency having their custody, according to law.
Ind.Code § 11-1-1-9. The statute is quoted above as it reads since a 1978 amendment. The substance of the statute has been the same throughout the period in question; the amendment merely added the subsection designations and made a few minor changes in wording.
. While the Murphy court proceeded to evaluate the inmate’s claims under the procedures prescribed in the parole statute, we do not read that as a retreat from its clear assertion that the Indiana statute did not create a protectible expectation of release. Instead, we read it as an attempt to determine whether the actions by the Parole Board in that case complied with the procedures mandated by the statute itself, not by the Due Process Clause of the Constitution.
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_stpolicy
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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".
FINE v. UNITED STATES.
No. 11952.
United States Court of Appeals Sixth Circuit.
Oct. 13, 1953.
Writ of Certiorari Denied Jan. 4, 1954.
See 74 S.Ct. 310.
W. E. Badgett, Knoxville, Tenn., for appellant. Taylor & Badgett, Knoxville, Tenn., on the brief.
John C. Crawford, Jr., U. S. Atty., Marysville, Tenn., for appellee. John F. Dugger, Elizabethton, Tenn., on the brief.
Before ALLEN, McALLISTER and MILLER, Circuit Judges.
PER CURIAM.
The appellant was convicted and sentenced under two counts of an indictment charging him with possession and concealment of liquor in unstamped containers in violation of the Internal Revenue Code, 26 U.S.C.A. § 1 et seq. The question presented is the validity of a search and seizure at appellant’s residence, and is raised by motion to suppress the evidence, which was denied by the District Court.
The warrant covered “the premises known as the Harve Fine residence and being a one story white frame dwelling with green shingle roof. Said house of about four rooms and located on the southeast corner of Mulberry Street and Cosby Cut-off Road in Newport, Tenn. * * The search warrant stated that “there is probable cause to believe that the property so described is being concealed on the premises above described” and commanded the officers “to search forthwith the place named * * The house searched was on premises belonging to Harve Fine, was white and was located on Mulberry Street in Newport, Tennessee. There was a conflict in the evidence as to whether it was situated at the intersection of Cosby Cut-off Road or of Prospect Avenue with Mulberry Street.
The house searched was the house described in the warrant and situated on the premises described. A description of the property is sufficient if the officer can with reasonable effort identify the intended place. Steele v. United States No. 1, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757; Sparks v. United States, 6 Cir., 90 F.2d 61, 63.
The affidavit upon which the search warrant was based stated that the affiant saw several cases of whiskey in one of the bedrooms of the Fine residence. The officers found no distilled spirits in the house and then went into the yard some 20 feet behind the house, broke the lock upon a shed, and found 5 half-gallon jars of whiskey, which are the basis of the prosecution. It was not improper to extend the search to this shed. The warrant authorized search of the “premises known as the Harve Fine residence” and of the “place named.” These terms are broader than a mere description of the house and certainly include the curtilage. While the shed is protected from unreasonable search and seizure, Roberson v. United States, 6 Cir., 165 F.2d 752; Baxter v. United States, 6 Cir., 188 F.2d 119, it is not protected from a valid search.
The judgment of the District Court is 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:
|
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.
MONTCLAIR, INC., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 19769.
United States Court of Appeals Fifth Circuit.
May 22, 1963.
James R. Harper, Cuba, Harper & Cuba, Atlanta, Ga., for petitioner.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept, of Justice, Crane C. Hauser, Chief Counsel, I. R. S., Earl J. Silbert, Atty., Dept, of Justice, Glen E. Hardy, Atty., I. R. S., David O. Walter, Richard M. Roberts, Attys., Dept, of Justice, Washington, D. C., for respondent.
Before JONES and BELL, Circuit Judges, and GROOMS, District Judge.
JONES, Circuit Judge.
The Tax Court, in a decision upholding the Commissioner of Internal Revenue in his determination of income tax deficiencies for 1955, 1956 and 1957, decided that deductions claimed as interest by the taxpayer corporation were, in fact, dividends on risk capital. The taxpayer, Montclair, Inc., is a Georgia corporation organized in 1944. It issued ten shares of common stock of the par value of $100 per share, of which three shares were issued to M. F. Brice, two shares to his wife, Margaret T. Brice, three shares to Dewey Scarboro, and two shares to his wife, Grace J. Scarboro. One hundred shares of Class A Preferred stock were issued to Federal Housing Administration. One hundred shares of Class B Preferred stock were issued, fifty shares to Mrs. Brice and fifty shares to Mrs. Scarboro. Montclair constructed and operated a fifty-unit apartment project in Atlanta, Georgia. The construction was financed by funds borrowed by Montclair from Brice Banking Co., of Vidalia, Georgia. Three hundred fifty shares, of the five hundred shares of the bank outstanding, were owned by M. F. Brice. Its loan to Montclair was secured by a security deed. The loan was insured by the Federal Housing Administration and the Class A stock was issued in connection with this transaction.
In 1945, or early in 1946, the Federal Deposit Insurance Corporation directed that the Brice bank get rid of the Montclair loan. M. F. Brice undertook to arrange for refinancing. The F.H.A. insurance terminated on June 1, 1946. The Class A stock was surrendered to Montclair. The First National Bank of Atlanta, Georgia, on June 27, 1946, loaned Montclair $150,000, taking a deed of trust on the apartment property as security. On July 1, 1946, the Citizens & Southern Bank of Savannah, Georgia, loaned M. F. Brice $170,000 secured by a pledge of United States Treasury bonds. The proceeds of this loan were made available to Montclair. The security deed to Brice Banking Co. was satisfied on July 2, 1946. On August 1, 1946, the Scarboros transferred their Montclair stock, common and preferred. In 1947, M. F. Brice and Margaret T. Brice endorsed their Montclair stock certificates in blank and turned them over to the Company. Certificates were issued to Tanner H. Brice, son of M. F. Brice, for five shares of common stock, fifty shares of Class A Preferred stock and fifty shares of Class B Preferred stock. Certificates for a like number of each class of stock were issued to Margaret B. Lad-son, daughter of M. F. Brice. The certificates of Tanner H. Brice were issued on January 1, 1947. There may be a question as to whether the certificates of Mrs. Ladson were issued on January 1, 1947, or July 1, 1947, but it seems unimportant.
Other loans were made over the years by the First National Bank of Atlanta, sometimes upon the security of the apartment property and usually endorsed by M. F. Brice. The last maturing of these obligations was paid on January 31,1949. On April 30, 1949, Coastal States Life Insurance Co. loaned Montclair $125,000, which was repaid on April 17, 1950. On December 27, 1950, Coastal States loaned Montclair $94,520, of which only $1,000 was unpaid on December 31,1956. These obligations were secured by deeds of trust on the apartments. In 1948, M. F. Brice made a financial statement to the First National Bank of Atlanta on which he stated that he owned 100 per cent, of the stock of Montclair. M. F. Brice was the president of Montclair and controlled its affairs and activities.
In its income tax returns for 1955, 1956 and 1957, Montclair showed indebtedness to officers, meaning M. F. Brice, in the respective amounts of $238,872.41, $224,987.62, and $225,248.24, and debts to others at the close of the same years amounting to $16,431.51, $16,431.51, and $1,000. The capital stock was shown, during this period, as $11,000. Interest deductions were claimed in the amounts of $14,998.23, $14,695.34 and $13,593.67 on the returns for the years mentioned. Like amounts were reported as interest income by M. F. Brice during the several years. These interest deductions were six per cent, of the amount shown as due officers at the beginning of each tax year. During these years Montclair paid M. F. Brice the sum of $20,229, $30,557, and $32,373. For these years Montclair returned taxable income in the amounts of $1,351.97 for 1955, $3,440.56 for 1956, and $4,897.77 for 1957. The disallowance of the claimed deductions resulted in deficiency assessments of $4,010.14 for 1955, $4,435.81 for 1956, and $4,067.99 for 1957. M. F. Brice, who, at all times here material, had been the president and in control of the management of Montclair, died before its tax case came on for trial before the Tax Court. Tanner H. Brice, who had been secretary of Montclair, became its president upon his father’s death.
At the trial Tanner H. Brice testified that he had an oral agreement with his father that Montclair would pay all of the income above operating charges to the father for interest and principal. There was no fixed maturity for any portion of the so-called debt so that there could be no default. The interest rate was not agreed upon except as to the prevailing rate. There was no written obligation to evidence an indebtedness. The Brice debt, so called, was frequently subordinated to loans made by banks to Montclair. The Tax Court reached the conclusion that the funds advanced to Montclair by M. F. Brice were risk capital rather than loans and sustained the Commissioner in disallowing deductions for the payments claimed as interest. We find no error in the Tax Court’s conclusion.
The criteria to be considered in determining questions such as this case poses have been thus stated:
“There are at least eleven separate determining factors generally used by the courts in determining whether amounts advanced to a corporation constitute equity capital or indebtedness. They are (1) the names given to the certificates evidencing the indebtedness; (2) the presence or absence of a maturity date; (3) the source of the payments; (4) the right to enforce the payment of principal and interest; (5) participation in management; (6) a status equal to or inferior to that of regular corporate creditors; (7) the intent of the parties; (8) ‘thin’ or adequate capitalization; (9) identity of interest between creditor and stockholder; (10) payment of interest only out of ‘dividend’ money; (11) the ability of the corporation to obtain loans from outside lending institutions.” O. H. Kruse Grain & Milling Co. v. Commissioner, 9th Cir., 1960, 279 F.2d 123, 125. See Mertens Federal Income Taxation § 26.10c.
This Circuit has rejected the notion that thin capitalization alone will justify the Commissioner in designating an indebtedness as capital, but recognizes that this factor need not be ignored in determining whether all of the facts authorize the inference of an intent to make a contribution to capital. Rowan v. United States, 5th Cir., 1955, 219 F.2d 51. Evidence which may tend to prove that a transaction was a contribution to capital may be of many sorts. Sun Properties v. United States, 5th Cir., 1955, 220 F.2d 171; Aqualane Shores, Inc. v. Commissioner, 5th Cir., 1959, 269 F.2d 116. No comprehensive rule can be stated which will be applicable in all cases. Commissioner v. T. R. Miller Mill Co., 5th Cir., 1939, 102 F.2d 599.
Montclair contends that M. F. Brice gave away his stock and was only a creditor of Montclair during the tax years involved. The Tax Court expressed a doubt as to there having been a gift of the stock by M. F. Brice to his children. The doubt was not resolved by the Tax Court and it is not necessary that we consider it. He was a stockholder when the advances were made and continued to exercise the exclusive control of the corporation, and its net earnings came into his hands. The Tax Court summarized in this manner, “There was no formal evidence of indebtedness, no fixed maturity date, claimed ‘repayments and interest’ came solely from net earnings, there was no right to enforce payment of interest or principal if opposed, M. F. Brice effectively managed petitioner at all relevant times, and payments to him were subordinated to regular corporate creditors. It is our view, from the entire record, that the claimed interest deductions must be disallowed.” With this conclusion we are in accord. The decision of the Tax Court is
Affirmed,
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_crmproc1
|
30
|
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.
UNITED STATES of America, Plaintiff-Appellee, v. Michael G. THEVIS, Alton Bart Hood, Global Industries, Inc., Anna Jeanette Evans, Defendants-Appellants.
No. 79-5739.
United States Court of Appeals, Fifth Circuit. Unit B
Jan. 11, 1982.
Rehearings Denied March 3, 1982 in Hood and Global Industries, Inc.
Rehearing and Rehearing En Banc Denied March 3, 1962 in Thevis and Evans
Bobby Lee Cook, Summerville, Ga., Wm. W. Taylor, III, Lawrence A. Katz, Washington, D. C., Edward T. M. Garland, Atlanta, Ga., for Thevis.
Joseph Beeler, Miami, Fla., Steven H. Sa-dow, Atlanta, Ga., for Global.
Wm. Ralph Hill, Jr., Lafayette, Ga., for Hood.
Edward E. Strain, III, Cornelia, Ga., for Evans.
Dorothy Y. Kirkley, Craig A. Gillen, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-ap-pellee.
Before KRAVITCH and THOMAS A. CLARK, Circuit Judges, and THOMAS, Senior District Judge.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452 — October 14, 1980.
The Honorable Daniel H. Thomas, Senior District Judge for the Southern District of Alabama, sitting by designation.
KRAVITCH, Circuit Judge.
Appellants Michael Thevis and Global Industries, Inc. [Global] were convicted by a jury of violating the Racketeer Influenced and Corrupt Organizations Act [RICO], 18 U.S.C. § 1962. Thevis and appellants Anna Jeanette Evans and Alton Bart Hood were convicted of conspiracy to violate the civil rights of Roger Dean Underhill under 18 U.S.C. § 241 by preventing him from testifying at trial. All appellants claim that the trial court erred in several evidentiary rulings, chiefly objecting to the trial court’s admission of Underhill’s grand jury testimony as a hearsay exception under Fed.R. Evid. 804(b)(5) and the trial court’s refusal to grant judicial use immunity to defense witness George Thevis. Appellants also claim that the trial court misconstrued RICO and incorrectly charged the jury; and appellants Thevis, Evans and Hood argue that the conspiracy charged under 18 U.S.C. § 241 is not a crime. Finally, appellants Evans and Hood claim their trials should have been severed, and the evidence was insufficient to convict them of the conspiracy. For the reasons stated below, we affirm the convictions of all defendants.
I. Background
The original indictment in this case, filed on June 10, 1978, named Michael G. Thevis, Global Industries, Inc., Fidelity Equipment Leasing Corporation and eight other individuals as defendants. The central allegation was that Thevis and the corporations had conducted an interstate pornography business through a pattern of racketeering activity. Roger Dean Underhill, a principal witness before the grand jury, was named as an unindicted co-conspirator. On October 25, 1979, the grand jury returned a superseding indictment which added a charge that Thevis, Jeanette Evans and Bart Hood conspired to murder Underhill in order to prevent his testimony. Seven of the original defendants were not reindicted and their cases were dismissed. Only Counts One, Two and Ten of the indictment are relevant to this appeal. Count One alleged a substantive RICO violation and Count Two alleged conspiracy to violate RICO. Count Ten, the charge added by the superseding indictment, alleged a conspiracy among Thevis, Evans, and Hood to deprive Underhill of his civil rights in violation of 18 U.S.C. § 241. The trial lasted approximately eight weeks and produced a voluminous record. Our recitation of the facts is therefore limited to only those absolutely essential to this appeal.
In the 1960’s, Michael Thevis organized and controlled a group of corporations whose principal purpose was the profitable distribution of adult books and films. Un-derhill met Thevis in the fall of 1967 and became a Thevis employee. Together, Un-derhill and Thevis developed a profitable peep-show machine that was manufactured and distributed by two Thevis-controlled corporations, Automatic Enterprises and Cinematics. The government offered evidence as to five separate acts of racketeering in the conduct of this peep-show enterprise. These acts were the murders of two competitors in the adult entertainment business, two separate acts of arson against competitors, and the murders of Underhill and a bystander, Isaac Galanti.
The Hanna Murder
Kenneth “Jap” Hanna owned several adult book stores in Atlanta. On November 13, 1970, Thevis called Underhill at 8:30 a. m. and told him to come to work immediately. When Underhill arrived, Thevis stated that he had shot Ken Hanna and left the body in the trunk of Hanna’s car in Thevis’ warehouse. In his haste to dispose of the body, Thevis had left the car keys in Hanna’s pocket, locked in the trunk. Thevis asked Underhill, a trained locksmith, to open the trunk and retrieve the keys. Thevis and Underhill then drove the car containing Hanna’s body to the Atlanta airport parking lot and left it. Afterwards, Underhill took various steps to dispose of any incriminating evidence, including burning the moving pad on which Hanna’s body had lain and replacing several bloody floor boards in the warehouse. In addition, he bought a welding torch outfit and melted the gun, the trunk lock, Hanna’s car keys, some Mexican coins which had been in Hanna’s possession, and a screwdriver. That night Underhill dumped the melted objects and the bloody boards in the Chattahoochee River.
During an interview with the FBI in 1977 Underhill showed agents the spot on the Chattahoochee where he disposed of the melted objects. A government diver found a pan containing melted objects. Analysis of the melted debris revealed two General Motors car keys, some Mexican coins, and a screwdriver on which appeared the letters “R”, “D”, and the beginning of either a capital “U”, “B”, or “W”.
The Mayes Murder
Jimmy Mayes was employed by Thevis and Underhill to build peep shows. Under-hill paid Mayes by giving him a percentage of his stock in the peep-show corporations. When Thevis took away half of Underhill’s and Mayes’ shares, Mayes became enraged and threatened to kill Thevis. In December of 1972, Thevis ordered Underhill to kill Mayes and gave him a gun for that purpose. Underhill had a chance to shoot Mayes one night, but could not pull the trigger. At Thevis’ instruction, Underhill then hired Bill Mahar to do the job. Mahar told Un-derhill that he was going to kill Mayes by putting a pipe bomb in his truck. The bomb went off just before midnight, and literally blew Mayes to pieces.
Thevis was at this time in the hospital due to injuries sustained in a motorcycle accident. On the day of the murder, Un-derhill advised Thevis that the explosion would take place that night. After the explosion, Underhill went to the scene and found a piece of bone and a gold pin. He showed this evidence to Thevis in the hospital; Thevis said that he planned to make the bone into a paperweight. The day after the murder, Thevis instructed his nephew, Mann Chandler, to give Underhill money from Thevis’ safe to pay Mahar.
The Louisville Arson
Nat Bailer, a competitor of Cinematics in the peep-show industry, owned a warehouse in Louisville, Kentucky. Thevis ordered Underhill to go to Louisville and burn the warehouse. On the weekend of April 27, 1976, Underhill drove to Louisville and, with two Thevis employees, Clifford Wilson and Robert Mitchum, set fire to the warehouse. Returning from Louisville, Under-hill called Thevis and reported their success. The former Mrs. Underhill corroborated Underhill’s out of town- trip on April 27, 1970. She also noticed that he was dirty and smokey when he returned and remembered that he wanted to get rid of the clothes he was wearing.
The Fayetteville Arson
In 1972, Thevis operated an adult bookstore in Fayetteville, North Carolina. Herman Womack owned a competing bookstore just one block away. Thevis told Underhill to burn down the competitor. On September 19, 1972, Underhill and Mahar drove to Fayetteville and accomplished the arson by drilling a hole in the roof of the building, pouring gasoline down into the interior, and igniting it with a water pistol used as a flame thrower. Afterwards Thevis gave Underhill $1,500 with which he paid Mahar for the successful arson.
The Underhill-Galanti Murders
Under duress from Thevis, Underhill sold his interest in Cinematics to Thevis in 1971, but remained on Thevis’ payroll (at about $50 per week) until Underhill went to prison in 1974. In 1975 Underhill filed a civil RICO suit against Thevis. While Underhill was in prison, the government sought unsuccessfully to get Underhill’s cooperation in its investigation of Thevis. Underhill was paroled in January 1977 without having reached any specific agreement with the government. Following his parole, Un-derhill was granted immunity and began to cooperate. He gave lengthy recorded statements to the FBI in January 1977 and testified before a federal grand jury in May 1977. In June 1977, Underhill visited Thev-is in the federal prison in Springfield, Missouri. Underhill wore a shoe mike provided by the FBI and recorded his conversation with Thevis. During this conversation Un-derhill told Thevis of his interviews with the FBI and that he had taken and passed a polygraph examination.
On April 28, 1978, Thevis escaped from the New Albany, Indiana, jail where he was confined during the trial of a civil case arising from the Louisville arson. Soon after his escape, he contacted defendants Evans and Hood. Jeanette Evans, a real estate agent in Marietta, Georgia, was a close personal friend of Thevis. Bart Hood, her cousin, was a detective in the Summerville, South Carolina, police department. Evans and Hood assisted Thevis in establishing several aliases, in obtaining an apartment, a VISA credit card, and safe-deposit boxes.
Hood and Evans requested Dennis Bradley, their mutual cousin, to make silencers for a.38 caliber pistol. Evans also inquired about a silencer for a 30.06 rifle. Bradley made two silencers; he mailed one to Hood in Summerville on October 20, 1978, and Hood picked up the second silencer late in the afternoon on October 25, 1978. Hood normally kept a shotgun and a 30.06 rifle in the trunk of his car. On November 5, 1978, he reported the theft of the two guns to the Summerville police but requested that the theft receive no publicity.
Records indicated that Hood was on sick leave from October 9-13, October 16-20 and October 23-25. Hood later told an investigator for credit card companies that he had been in Atlanta with Clarence Feagin (a Thevis alias) on October 25, the date of Underhill’s death. On October 24, 1978, Hood placed a call from the Journey’s End motel in Atlanta to the South Carolina Highway Patrol in order to run a license check on the car being driven by Underhill.
Underhill owned an undeveloped tract of land on Riverside Drive in Atlanta. It had an unpaved driveway, blocked by a gate, which carried visitors quickly out of sight of the main road. At the time of Underhill’s death, this property was for sale. On October 24, Evans went to the office of real estate agent Louis Carter, and asked to see the Fulton County tax maps. Evans first looked for a single-family residence on Riverside Drive, but was unable to locate it because she had the wrong address. Next, Evans asked about the Underhill property, claiming she had a prospective purchaser. Carter considered this request odd, because about a year and a half earlier Carter had contacted Evans about this same property. Evans at that time warned Carter not to have anything to do with the Underhill property, explaining that Underhill was dangerous and “involved with Michael Thevis’ activities.”
On October 21, 1978, Irene Williams, Un-derhill’s fiancee, joined him at an Atlanta motel. Underhill intended to enter the Federal Witness Protection Program shortly, but wanted to sell the Riverside Drive property first. Ms. Williams and Underhill spent two days cleaning up the property. On Wednesday, October 25, Underhill left Williams at approximately 11:30 a. m. to keep an appointment to show the property to Isaac N. Galanti. At about noon, Williams and her two children drove to meet Underhill. When she arrived, she noticed the gate was down and then found the bodies of Underhill and Galanti. She ran across the street to the residence of Henry and Pearl Stumminger.
On Tuesday night, October 24, Henry Stumminger had observed a car or truck bash into the gate on the driveway of the Underhill property. At 11:35 a. m. on October 25, Mrs. Stumminger heard seven or eight “pops,” looked out the window, and saw a black car driving slowly up Riverside Drive. About twenty-five minutes later, a “hysterical” Irene Williams rang her doorbell.
Police and FBI agents were summoned to the scene. They found several shotgun shell casings and spent 30.06 shells. Under-hill had died from one or more shotgun blasts. Galanti had been killed by gunshot wounds to the head and neck. One wound on his neck was attributable to a high-powered rifle, such as a 30.06.
At trial the government presented identification testimony from two eyewitnesses: Rodney Letchworth, who placed Thevis at the scene of the Underhill-Galanti shooting, and Milton McMurray, who placed Thevis, Evans, and Hood together approximately forty-five minutes after the murders. At approximately 11:30 a. m. on October 25, Letchworth, a retired marine pilot, had driven by the Underhill property and noticed a man standing near the gate. He later identified this individual as Thevis. McMurray, a commercial airline pilot, was a neighbor of Evans. At 12:10 p. m. on October 25, and again about 15-20 minutes later, McMurray observed Evans and two men drive past his yard. At trial, he identified the man in the front seat as Thevis, and the man in the back as Hood.
Thevis and Evans were arrested on November 9, 1978 in Bloomfield, Connecticut. A search of their persons and their car yielded firearms, $411,000 in cash, and over one million dollars worth of jewelry. A search of a rental locker in South Windsor, Connecticut disclosed a transcript of interviews the FBI had conducted with Under-hill. Fingerprint analysis revealed over 100 of Thevis’ fingerprints and palm prints throughout the transcript and one of Evans’ fingerprints on an inside page of the transcript.
Immediately after his arrest, Thevis was confined in a federal prison in Danbury, Connecticut. His cellmate, Bernard McCarthy, testified that Thevis had confessed to the murder of Underhill. According to McCarthy, Thevis told him that he had lured Underhill to his property by breaking the fence down, where he “assassinated” Underhill and his “bodyguard” with a shotgun. Thevis explained that he killed Un-derhill because Underhill intended to testify against him, and that Underhill was to enter the marshal’s protection service the following Monday. Thevis boasted to McCarthy that while a fugitive he had travelled incognito in the Atlanta area, once receiving a speeding ticket there. Police later determined, based solely on McCarthy’s information, that Thevis had received such a ticket using the name C. M. Feagin. McCarthy was also able to describe the contents of Thevis’ car at the time Thevis was arrested.
II. Challenges to the Indictment
A. The Interpretation of RICO
Appellants make three separate arguments that the trial court erred in construing RICO. First, they claim that the trial court should have struck the Underhill-Ga-lanti murders from Counts One and Two of the indictment (the RICO charges) because the evidence failed to show that Thevis was “associated with” the enterprise at the time of the murders, and because the murders were not acts through which Thevis conducted the affairs of the enterprise.
This contention is without merit. As this court noted in United States v. Elliott, 571 F.2d 880, 898 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978), proof of association with a RICO enterprise may depend wholly on circumstantial evidence. The record in this case contains such evidence. Although Thevis had purportedly sold his interest in the pornography business to his secretary, Laverne Bowden, for $16 million dollars, the note securing the sale was always in default. Thevis, therefore, could foreclose at any time and regain his interest in the business. Rodney Glen Smith, a cellmate of Thevis in 1977, testified that despite the “sale,” Thevis stated he still “controlled” his pornography empire; given the terms of the “sale” and the fact Thevis had contacted Ms. Bowden after his escape from jail in 1978, one could infer that Thevis’ interest in the success of the pornography enterprise continued until the Underhill murder. The murder itself, moreover, neatly advanced Thevis’ interests in the enterprise. The original indictment in the case sought forfeiture of all the assets of Global and Fidelity under RICO forfeiture provisions. The Underhill murder was designed to prevent the government’s key witness from testifying at trial, thus imperiling the government’s entire RICO case and preventing both RICO criminal convictions and forfeiture. The murder, therefore, protected the integrity of the enterprise. Keeping the enterprise together was inextricably tied to furthering its business; hence the Underhill murder was a proper predicate act under § 1962. See United States v. Welch, 656 F.2d 1039, 1060-62 (5th Cir. 1981) (predicate acts only required to have sufficient nexus with enterprise to be properly charged under RICO).
Appellants’ second argument is that the term “enterprise” as used in RICO does not include the specific association charged in this case. The RICO definitions section, 18 U.S.C. § 1961, states that an enterprise “includes any individual, partnership, corporation, association, or other legal entity, and any union or other group of individuals associated in fact although not a legal entity.... ” Appellants contend that because the indictment described the enterprise as “a group of individuals associated in fact with various corporations,” the enterprise alleged did not fall within the literal bounds of the statutory classifications. We reject this claim.
This specific question is one of first impression. We nevertheless are convinced, as was the trial court, United States v. Thevis, 474 F.Supp. 134, 137 (N.D.Ga.1979), that RICO covers the enterprise alleged in this case. Use of the verb “includes” in the statutory definition indicates congressional intent not to limit a RICO enterprise to the specific categories listed; rather, the language “reveals that Congress opted for a far broader definition of the word ‘enterprise’.” United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 2533-34, 69 L.Ed.2d 246 (1981). See United States v. Elliott, supra, at 897 (quoting United States v. Hawes, 529 F.2d 472, 479 (5th Cir. 1976)). Moreover, the House report accompanying RICO stated that “enterprise” included “associations in fact, as well as legally recognized associative entities. Thus infiltration of any associative group by any individual or group capable of holding a property interest can be reached.” House Rep.No.91-1549, 91st Cong., 2d Sess., reprinted in [1970] U.S.Code Cong. & Ad.News 4007, 4032 (emphasis added). Although the term “enterprise” may have some limits, the indictment in this case properly alleged an “association in fact” within the scope of § 1961.
Appellants’ final argument is that RICO was not intended to apply to illegitimate enterprises such as the association alleged here. The Supreme Court has now decided this issue in United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), holding that RICO applies to both illegitimate and legitimate enterprises.
B. The Charge Under 18 U.S.C. § 241
Count Ten of the indictment charged Thevis, Evans and Hood with violating 18 U.S.C. § 241. That section makes criminal a conspiracy “to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.... ” The government alleged that Thevis, Evans and Hood had conspired to injure Underhill in the exercise of his right to testify at trial. Appellants urge that this charge failed to state a crime because the right to testify is not one secured by the Constitution or laws of the United States.
To support this contention, appellants cite United States v. Sanges, 48 F. 78 (5th Cir. 1891), which specifically held that the right to testify was not one secured by the Constitution or laws of the United States. Although ordinarily a panel must adhere to prior decisions of this court, our first duty is to follow the dictates of the United States Supreme Court. We therefore must consider whether the Supreme Court’s decision in In Re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1894), overruled Sanges sub silentio.
Quarles involved a conspiracy charge under the predecessor statute to § 241. The victim of the conspiracy was assaulted for reporting a violation of the federal tax laws to a deputy United States Marshal for the Northern District of Georgia. The Court held that the right to report a crime, although not specifically guaranteed by the Constitution, nonetheless “arose out of the creation and establishment by the Constitution itself of a national government, paramount and supreme within its sphere of action.” 158 U.S. at 535-36,15 S.Ct. at 961. The Court concluded, “It is the duty and right... of every citizen, to assist in prosecuting, and in securing the punishment of any breach of the peace of the United States." Id. at 535, 15 S.Ct. at 960-961 (emphasis added).
Thus while Quarles did not specifically address the right to testify, the language and reasoning encompass such a right. Testifying at trial both “assists the prosecution” and “secures the punishment” of a crime. Moreover, as the Second Circuit noted in United States v. Pacelli, 491 F.2d 1108, 1113 (2d Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 49 (1974) (holding that the right to testify is one guaranteed by federal law):
Our federal government has a particular interest in assuring a prospective witness that he or she will be free to respond by attending the trial of a federal indictment as a witness without being prevented from doing so by threats, molestation or force. Otherwise, the foundations of federal justice would be undermined.
See United States v. Smith, 623 F.2d 627 (9th Cir. 1980); United States v. Guillette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977). See generally, Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (5th Cir. 1981) (en banc) (interpreting 42 U.S.C. § 1985(2) as providing a cause of action for racial- or class-based interference with testifying at trial). We conclude, therefore, that Quarles implicitly overruled Sanges, and the Supreme Court’s reasoning controls this case. Thus we hold that the right to testify at trial is one secured by the Constitution, and that the conspiracy charged in the indictment properly stated a federal crime.
III. The Evidentiary Rulings
A. Admission of Underhill’s Grand Jury Testimony
Having determined that the charges in the indictment were proper, we proceed to consider appellants’ various evidentiary claims. One of their major contentions is that the trial court erroneously admitted certain transcripts of Underhill’s grand jury testimony and FBI interviews as substantive evidence of guilt on the RICO charges.
The government’s principal witness in the RICO case against Thevis and Global was to be Thevis’ former business ’‘associate, Roger Dean Underhill. Following Underhill’s murder, the government notified the court, and the defendants that pursuant to Fed.R. Evid. 804(b)(5), it intended to offer portions of Underhill’s grand jury testimony and interviews with the FBI as substantive evidence of Thevis’ guilt under Counts One and Two. The court permitted the government to offer its evidence as to Count Ten first, in order to establish that Thevis was responsible for Underhill’s death and provide a basis for the court to rule on the 804(b)(5) issue. The court then admitted specific portions of Underhill’s testimony as containing sufficient “circumstantial guarantees of trustworthiness” as required under Fed.R.Evid. 804(b)(5). The court also held that although admitting the evidence under Rule 804(b)(5) would have violated Thevis’ confrontation rights under the sixth amendment, the government had established by “clear and convincing” evidence that Thevis had caused Underhill’s death; hence, Thevis had waived his confrontation rights. United States v. Thevis, 84 F.R.D. 57 (N.D.Ga.1979).
In contending that the trial court erred in admitting the Underhill evidence, appellants make three arguments. First, appellants claim that the evidence did not have the “circumstantial guarantees of trustworthiness” required to meet Rule 804(b)(5). Appellants also contend that the trial court erred in applying the “clear and convincing” standard to the proof of Thevis’ waiver, arguing instead that the “beyond a reasonable doubt” standard should apply. Finally, appellants argue that even if Thevis waived his confrontation rights, Underhill’s statements were so untrustworthy that their admission violated due process.
The issue of admissibility of a witness’ hearsay statements in the face of a defendant-caused absence of that witness from trial is a question of first impression in this circuit, although other circuits have faced this problem under slightly different circumstances. In United States v. Balano, 618 F.2d 624 (10th Cir. 1979), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980), the Tenth Circuit confronted a situation in which the defendant had coerced the witness into silence by threatening the witness’ life. The court held that the defendant had waived his confrontation rights and without further explanation stated that such a waiver was a fortiori a waiver of any hearsay objection. In United States v. West, 574 F.2d 1131 (4th Cir. 1978), a key government witness had been murdered prior to trial, but that murder had not been connected to the defendants. Nevertheless, the Fourth Circuit found that the witness’ grand jury testimony met the reliability standards of Rule 804(b)(5) and was sufficiently trustworthy that its admission did not violate the confrontation clause. Finally, United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977), the case the trial court primarily relied on here, involved facts similar to those in Balano. After determining that the witness’ grand jury testimony met the standards of Rule 804(b)(5), the Eighth Circuit held that, even assuming admitting the evidence would violate the confrontation clause, the defendant had waived his confrontation rights by intimidating the witness into silence.
We reject both the West and Carlson approaches to this issue, based upon our reading of Rule 804(b)(5) and relevant Supreme Court precedent. As to Carlson, we are convinced that Rule 804(b)(5) does not require finding a confrontation clause waiver once a court has concluded that the proffered evidence has met the reliability standards of the Rule. Both the wording of the Rule and the legislative history indicate that Congress intended evidence to be admitted under 804(b)(5) only if the reliability of the evidence equals or exceeds that of the other exceptions in Rule 804(b). The Supreme Court has held that as to two of the other exceptions, dying declarations and prior testimony where cross-examination has already occurred, the reliability of the admitted evidence satisfies the confrontation clause. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2540-41, 65 L.Ed.2d 597 (1980) (prior testimony); Mattox v. United States, 156 U.S. 237, 243-44, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895) (dying declarations). See also, Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 1069-70, 13 L.Ed.2d 923 (1965) (citing Mattox for the proposition that the Court has recognized the admissibility of dying declarations despite lack of confrontation). Hence we find that imposing on 804(b)(5) admissibility the additional condition of a waiver of confrontation rights is contrary to the express wording of the Rule, congressional intent, and Supreme Court precedent.
A more fundamental disagreement with both West and Carlson is the conclusion in those cases that corroborated grand jury testimony in fact meets the reliability standards of Rule 804(b)(5). The Senate Judiciary Committee’s report on the Federal Rules of Evidence stated that the 804(b)(5) residual exception was to be used only rarely, in truly exceptional circumstances. Corroborated grand jury testimony which for one reason or another is unavailable at trial is neither rare nor exceptional, and in our opinion its general admission under this theory would constitute a “major revision” of the hearsay rule that, as the Senate Judiciary Committee admonished, is for the legislature, not the judiciary. Grand jury testimony, although given under oath, is not subjected to the vigorous truth testing of cross-examination, as is prior testimony. Grand jury testimony, moreover, is often given under a grant of immunity which might encourage a witness to “embellish” his story. We need not determine whether grand jury testimony ever meets the stringent reliability standards of Rule 804(b)(5), however, because we conclude other grounds support the admission of the Underhill statements. Thus while we agree with the trial court’s application of the “clear and convincing” standard to the admissibility question, we find the evidence admissible on a different basis than did the trial court: adopting the Tenth Circuit’s approach in Balano, we hold that Thevis’ waiver of his right to confrontation in these circumstances also constituted a waiver of any hearsay objection.
1. The Constitutional Waiver
The sixth amendment to the Constitution provides in part that “in all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.... ” All parties to this appeal agree that this right may be waived in a proper case. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). Whether a waiver existed in this case requires analyzing two separate questions: whether a defendant’s murder of a witness for the purpose of preventing his testifying at trial constitutes a valid waiver, and what standard of proof the government must bear in proving that waiver.
A waiver of a constitutional right is ordinarily valid only if there is “an intentional relinquishment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). A variety of actions by the accused constitute an express waiver of the right to confrontation. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (guilty plea); United States v. Stephens, 609 F.2d 230 (5th Cir. 1980) (stipulations to evidence). The accused, however, may also waive his confrontation rights indirectly, such as by absenting himself from trial, Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), or engaging in contumacious conduct which requires his removal from the courtroom. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).
We conclude that a defendant who causes a witness to be unavailable for trial for the purpose of preventing that witness from testifying also waives his right to confrontation under the Zerbst standard. A defendant who undertakes this conduct realizes that the witness is no longer available and cannot be cross-examined. Hence in such a situation the defendant has intelligently and knowingly waived his confrontation rights.
The policy interests underlying the confrontation clause, moreover, mandate this result. We recognize that the right of confrontation is so fundamental to our concept of a fair trial that it is a privilege specifically guaranteed by the Constitution. Nevertheless, both Taylor and Allen indicate that the right is not absolute, and must give way at times to stronger state interests. Similarly, when confrontation becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived. The law simply cannot countenance a defendant deriving benefits from murdering the chief witness against him. To permit such subversion of a criminal prosecution “would be contrary to public policy, common sense, and the underlying purpose of the confrontation clause,” United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977), and make a mockery of the system of justice that the right was designed to protect.
The question of the proper burden of proof to apply to the waiver question presents a more difficult issue. Appellants claim that the “reasonable doubt” standard should apply, relying in part on the Supreme Court decision In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). As the Court later noted in Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), however,- Winship “was not concerned with the standards for determining the admissibility of evidence”; rather, Winship merely affirmed the necessity for the prosecution, in order to secure a conviction, to prove every essential element of the offense beyond a reasonable doubt. Here the trial court’s decision to admit Un-derhill’s statements was purely an eviden-tiary ruling, not a decision on Thevis’ substantive guilt. Hence we reject appellants’ “reasonable doubt” standard on the basis of the Supreme Court’s analysis in Lego.
Because of the intimate association between the right to confrontation and the accuracy of the fact-finding process, however, we also reject the government’s suggestion that the “preponderance” standard accepted by the Supreme Court in Lego (to judge the voluntariness of a confession) and United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (to judge whether a warrantless search was consensual) is also adequate to protect confrontation rights.
The Supreme Court repeatedly has noted the importance of confrontation rights in testing the reliability of evidence. Indeed, the Court in its most recent confrontation clause case declared that the role of confrontation in testing accuracy is so important “that the absence of confrontation at trial calls into question the ultimate integrity of the fact-finding process.” Ohio v. Roberts, 448 U.S. 56, 64, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 579 (1980) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973) and Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540,
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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songer_appel2_1_2
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second 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".
NEW YORK FOREIGN FREIGHT FORWARDERS AND BROKERS ASSOCIATION, Inc., Inge and Company, Inc., Barr Shipping Company, Inc., Major Forwarding Company, Inc., and John H. Faunce, Inc., Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, Philadelphia Freight Brokers, Forwarders and Custom Brokers Association, Inc., Baltimore Custom House Brokers and Forwarders Association, Foreign Commerce Club of Boston, Inc., and Export and Import Forwarding Association of Virginia, Interveners. NATIONAL CUSTOMS BROKERS & FORWARDERS ASSOCIATION OF AMERICA, Inc., Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents. FARRELL SHIPPING CO., Inc., Farrell Bros. Brokerage, Inc., Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents.
Nos. 34-36, Dockets 28229, 28306, 28307.
United States Court of Appeals Second Circuit.
Argued Sept. 23, 1964.
Decided Oct. 14, 1964.
Gerald H. Ullman, Francis J. Haley, New York City, for petitioners in No. 28229.
James F. Young, Philadelphia, Pa. (Eugene R. Lippman, Mark D. Alspach, Krusen, Evans & Byrne, Philadelphia, Pa., on the brief), for interveners in No. 28229.
Charles S. Haight, of Haight, Gardner, Poor & Havens, New York, N. Y. (Thomas K. Roche, Sanford C. Miller, New York City, William F. Faison, on the brief), for petitioner in No. 28306.
Donald D. Webster, of Hogan & Hart-son, Washington, D. C., for petitioners in No. 28307.
Jerome B. Blum, of Federal Maritime Commission, Washington, D. C. (James L. Pimper, Gen. Counsel, Robert E. Mitchell, Deputy Gen. Counsel, William H. Orrick, Jr., Asst. Atty. Gen., Arthur J. Murphy, Jr., Robert B. Hood, Jr., Dept, of Justice, on the brief), for respondents.
Before MOORE, SMITH and KAUFMAN, Circuit Judges.
KAUFMAN, Circuit Judge:
In these consolidated appeals ocean freight forwarders, individually and through trade associations, question the validity of six regulations issued by the Federal Maritime Commission. The regulations, which implement the Freight Forwarder Law of 1961, 75 Stat. 522, 46 U.S.C. §§ 801, 841a, 841b, generally concern “brokerage” payments from ocean carriers to forwarders and the forwarders’ methods of billing shippers.
Our discussion of the regulations will be clearer if the duties of a forwarder are first brought into focus. Most American exporters use the services of ocean freight forwarders who, in essence, act as export departments for their shipper clients. An exporter who ships goods abroad customarily consigns the merchandise to a forwarder who then makes all arrangements for dispatch to a foreign port. Thus, the forwarder will secure cargo space with a steamship company, give advice on governmental licensing requirements, proper port of exit and letter of credit intricacies, and arrange to have the cargo reach seaboard in time to meet the designated vessel. The forwarder also prepares required shipping documents, including the dock receipt, delivery order, bill of lading, export declaration and the consular invoice required on shipments 'to certain countries.
Often the forwarder performs so-called accessorial services, such as arranging insurance either under his own policy or the exporter’s open marine policy. He may provide for local trucking of less than carload parcels to the pier and occasionally he will store partial shipments. To reimburse himself for the cost of arranging these accessorial services the forwarder charges the shipper a fee greater than his actual disbursement.
Most forwarders receive their revenues from two sources. They are paid by shippers for the various forwarding services performed and on many shipments forwarders receive, in addition, brokerage payments from ocean carriers.
Despite the forwarders’ valuable role in relieving exporters of the many details and formalities of foreign trade and facilitating the flow of water-borne commerce, certain activities within the industry have been scrutinized by public agencies and found objectionable. Criticism has focused primarily on the forwarders’ activities as brokers and the payments received for such brokers’ services from ocean earners as well as the forwarders’ methods of billing shippers.
The history of public investigation begins in 1942 when the Maritime Commission instituted a probe, under the 1916 Shipping Act, 39 S'tat. 728, 46 U.S. C. § 801, into the propriety of forwarder practices at the Port of New York. The proceedings were temporarily sidetracked when the forwarders challenged the agency’s statutory authority to regulate their industry’s activities. The Maritime Commission’s jurisdiction was upheld in United States v. American Union Transport, Inc., 327 U.S. 437, 66 S.Ct. 644, 90 L.Ed. 772 (1946), when the Supreme Court concluded that foreign freight forwarders, even though not contractually or corporately affiliated with a common carrier by water, are subject to the Shipping Act’s regulatory provisions.
The Court pointed out that forwarders are “agents of the shipper,” intimately related to both shipper and carrier as a “go-between,” and that “considerations of policy and history” called for their inclusion within the regulatory scheme. 327 U.S. at 443, 445, 450, 66 S.Ct. 644. In Mr. Justice Rutledge’s words:
“Section 16 forbids various forms of discrimination, as well as other practices, on the part of any common carrier by water ‘or other person,’ which an independent forwarder readily may commit or induce. * * * [S]ome of the practices forbidden appear to be peculiarly if not exclusively susceptible of commission or inducement by forwarders, brokers and shippers’ agents, all specifically mentioned in the section.
“The purpose of § 17, in relevant part, is to provide for the establishment, observance and enforcement of just and reasonable regulations and practices relating to or in connection with the receiving, handling, storing or delivering of property. By the nature of their business, independent forwarders are intimately connected with these various activities. Here again, unless the Commission has jurisdiction over them, it may not be able effectively to carry out the policy of the Act.” 327 U.S. at 447-449, 66 S.Ct. at 649-650.
After the Supreme Court’s decision the Maritime Commission completed its investigation, Port of New York Freight Forwarder Investigation, 3 U.S.M.C. 157 (1949), and on May 18,1950, issued regulations governing forwarder billing practices, special contracts between forwarders and shippers or consignees, and brokerage payments. 46 C.F.R. Part 244. In 1954 the agency began a second broad study of the forwarding industry. Some seven years later, on June 29, 1961, a comprehensive report was published, together with regulations to become effective after 120 days. Investigation of Practices, Operations, Actions, and Agreements of Ocean Freight Forwarders, 6 F.M.B. 327.
In the course of these extensive probes the maritime agency uncovered certain disturbing improprieties in forwarder billing methods; charges for accessorial services, for example, were marked up “in a random fashion.” The 1961 report concluded that “discrimination, preference, and prejudice is the rule” in the assessment of forwarder charges and is unlawful absent justification. Accordingly, the 1950 regulations were modified “to prohibit the assessment of disguised markups in all instances which are shown on this record to result in violation of sections 16 and 17 of the Act.” 6 F.M.B. at 359, 365.
The agency also investigated and analyzed brokerage payments from carriers to forwarders. After pointing out that forwarders are engaged by shippers to carry out shipper responsibilities, the Commission held that forwarders are generally not brokers in their relations with carriers. Nevertheless, according to the study, the carriers paid brokerage fees without ascertaining whether the forwarders had performed any services and without determining if forwarder-shipper relationships would make the payments illegal rebates under section 16. Having concluded that brokerage fees led forwarders to discriminate among shippers in violation of sections 16 and 17 of the Shipping Act, the agency resolved to prohibit brokerage payments covering cargo with respect to which forwarding services had been rendered.
Reaction from the freight forwarding industry followed swiftly and took the form of efforts to secure Congressional legislation which came to fruition in the Freight Forwarder Law, enacted September 19, 1961. 75 Stat. 522, 46 U.S.C. §§ 801, 841a, 841b. Congress’ remedy for the industry’s malpractices stopped short of the agency’s proposed total ban on brokerage payments. Instead, compensation from carriers was authorized only where the forwarder renders specified services of value and issues a certificate to that effect. Additionally, forwarders would be licensed and other safeguards provided to enable the Maritime Commission to cure the abuses and undesirable practices uncovered in its extensive investigations.
Under the 1961 Law a common carrier may “compensate” a licensed forwarder “when, and only when” he has performed —and certifies to the carrier that he has performed — “the solicitation and securing of the cargo for the ship or the booking of, or otherwise arranging space for, such cargo” plus at least two out of five additional enumerated services. 46 U.S.C. § 841b (e). Moreover, a license is now required as a prerequisite to engaging in the forwarding business. 41 U.S.C. § 841b(a). A forwarder licensee must be “independent” — free of any affiliation with a shipper, consignee, seller, purchaser of the shipment, or with any person having a beneficial interest in the goods, 46 U.S.C. § 801 — in order to eliminate indirect rebates to shippers. Finally, the Maritime Commission is directed to prescribe “reasonable rules and regulations” to be observed by forwarders. 46 U.S.C. § 841a.
The Commission heeded this mandate and commenced a new rule-making proceeding. In December 1961 the agency issued regulations, without objection from the forwarders, setting forth the procedure for obtaining a forwarder’s license. Shortly thereafter, in February 1962, proposed rules regulating the “Practices of Independent Ocean Freight Forwarders, Ocean Freight Brokers, and Oceangoing Common Carriers” were published. After reviewing the comments of interested parties, the Commission revised some of the proposed rules and republished them in January 1963. Further comments were received and the Commission heard oral arguments respecting those rules challenged by the forwarding industry. Finally, by order dated April 2, 1963, published in the Federal Register of May 1, 1963, 28 Fed. Reg. 4300, the Maritime Commission gave notice that, after further revision, the proposed rules had been adopted and would become eifective June 1, 1963. On May 21, 1963, the Commission denied petitions by freight forwarders to reconsider certain of the adopted rules.
Having exhausted their administrative remedies, the aggrieved freight forwarders filed petitions with this Court and the Court of Appeals for the District of Columbia Circuit seeking judicial review of six of the proposed regulations. On May 28, 1963, we issued an interlocutory injunction restraining the Commission from putting into effect the challenged rules until thirty days after the determination of this appeal. The District of Columbia proceedings have been transferred to this Court pursuant to 28 U. S.C. § 2112(a), and the several eases have been consolidated. Our jurisdiction derives from the Administrative Orders Review Act, 64 Stat. 1129 (1950), 5 U.S. C. §§ 1031-1042 (1958).
The six challenged regulations may be briefly summarized: (A) Section 510.21 (1) defines a forwarder’s “beneficial interest” in shipments to include “any lien interest” therein. (B) Section 510.22(a) prohibits a forwarder from collecting compensation from a carrier where the carrier performs part of the forwarding services. (C) Section 510.23(j) requires a forwarder to itemize or state separately on his bill his actual expenditures on the shipper’s behalf as well as the charges or fees assessed for his own services. (D) Section 510.24(e) requires the forwarder to certify to the carrier, as to each shipment, which of the services specified in Section 44(e) of the 1961 Law he has performed. (E) Section 510.24(g) prohibits a licensed forwarder, and any person or firm in which he has a beneficial interest, from charging or collecting “any compensation or brokerage” from a carrier with respect to non-bulk cargo, unless the forwarder has performed the minimum services specified in Section 44 (e). (F) Section 510.25(a) provides that forwarders, upon reasonable request, must disclose to Maritime Commission personnel or bona fide shippers, special contracts or arrangements with shippers.
I.
Orderly procedure requires that we first define this court’s limits in adjudicating the validity of the challenged regulations. In doing so we should consider the contentions respecting our scope of review. The New York Association maintains that the Maritime Commission’s rule-making authority is limited to correcting practices found to violate the regulatory provisions of the 1916 Shipping Act. If, according to this view, a practice sought to be regulated is not contrary to a substantive provision of the 1916 Act, then, it is urged, the regulation is invalid. We do not agree with this restrictive view of the agency’s powers.
Judge Frank eapsulized the standards that govern our review in United States v. Obermeier, 186 F.2d 243 (2d Cir.1950), cert. denied, 340 U.S. 951, 71 S.Ct. 569, 95 L.Ed. 685 (1951). He wrote that “(1) A regulation is presumptively valid, and one who attacks it has the burden of showing its invalidity. (2) A regulation or administrative practice is ordinarily valid unless it is (a) unreasonable or inappropriate or (b) plainly inconsistent with the statute.” See also Grace Line, Inc. v. Federal Maritime Board, 263 F.2d 709, 711 (2d Cir. 1959). Michael Obermeier had been convicted for knowingly making a false statement under oath in an administrative, prenaturalization-peti'tion examination. He claimed that he committed no crime because the oath was administered without explicit statutory authority. The court rejected this view, holding that the regulations, which went beyond the Naturalization Act in authorizing an oath in examinations held before filing a petition for naturalization, were “eminently reasonable and appropriate.” 186 F.2d at 248. The Administrative Procedure Act, § 10(e), 5 U.S.C. § 1009, articulates the test in this fashion: agency rules may not be arbitrary, capricious or an abuse of discretion or unsupported by substantial evidence.
Our limited scope of review, established by judicial decisions and the A.P.A., is based on a realistic view of the legislative process. Congressional legislation does not undertake to deal with every specific evil for some are unforeseeable; instead Congress often creates an administrative agency to allow application of experts’ familiarity with the problems involved. The Supreme Court carefully explained the necessary and proper function of agency rule-making in American Trucking Ass’ns, Inc. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953). The Interstate Commerce Commission had issued rules prohibiting short-term or trip-leasing by motor carriers. The Court held that promulgation of the rules was within the Commission’s power, despite the absence of specific reference to leasing practices in the Motor Carrier Act. Mr. Justice Reed’s words deserve quotation:
“All urge upon us the fact that nowhere in the Act is there an express-delegation of power to control, regulate or affect leasing practices, and it is further insisted that in each, separate provision of the Act granting regulatory authority there is no direct implication of such power. Our function, however, does not stop with a section-by-section search for the phrase ‘regulation of leasing practices’ among the literal words of the statutory provisions. As a matter of principle, we might agree with appellants’ contentions if we thought it a reasonable canon of interpretation that the draftsmen of acts delegating agency powers, as a practical and realistic matter, can or do include specific consideration of every evil sought to be corrected. But no-great acquaintance with practical affairs is required to know that such prescience, either in fact or in the minds of Congress, does not exist. National Broadcasting Co. v. United States, 319 U.S. 190, 219-220 [63 S.Ct. 997, 1010-1011, 87 L.Ed. 1344]; Phelps Dodge Corp. v. [National Labor Relations] Board, 313 U.S. 177, 193-194 [61 S.Ct. 845, 852, 85 L.Ed. 1271]. Its very absence, moreover, is precisely one of the reasons why i*egulatory agencies such as the Commission are created, for it is the fond hope of their authors that they bring to their work the expert’s familiarity with industry conditions which members of the delegating legislatures cannot be expected to possess. United States v. Pennsylvania R. Co., 323 U.S. 612 [65 S.Ct. 471, 89 L.Ed. 499].” [344 U.S. 298, 309-310, 73 S.Ct. 307, 314.]
The New York Association also suggests that the rules do not contain “a concise general statement of their basis and purpose” in compliance with Section 4(b) of the Administrative Procedure Act, 5 U.S.C. § 1003(b). But the order promulgating the rules meets the statutory requirement in stating that they implement the 1961 Law “and have for their purpose the establishment of standards and criteria to be observed and maintained by licensed independent ocean freight forwarders, ocean freight brokers and oceangoing common carriers in the conduct of their business affairs.”
Finally, we cannot ignore the Maritime Commission’s responsibility to enforce the overall objectives of the 1916 Shipping Act. Mr. Justice Frankfurter defined the broad scope of this obligation in State of California v. United States: “Finding a wrong which it is duty-bound to remedy the Maritime Commission, as the expert body established by Congress for safeguarding this specialized aspect of the national interest, may, within the general framework of the Shipping Act, fashion the tools for so doing.” 320 U.S. 577, 584, 64 S.Ct. 352, 356, 88 L.Ed. 322 (1944). The same thought was expressed more recently:
“The great complexity of our economy induced Congress to place the regulation of businesses like foreign shipments in specialized agencies with broad powers. The courts are slow to interfere with the conclusions of such agencies when reconcilable with statutory directions.” American Union Transport, Inc. v. United States, 103 U.S.App.D.C. 229, 257 F.2d 607, 612, cert. denied, 358 U.S. 828, 79 S.Ct. 46, 3 L.Ed.2d 67 (1958).
II.
With this background we now consider whether the six challenged regulations are reasonable and consistent with the authority granted in the 1916 Shipping Act and the 1961 Freight Forwarder Law.
A. Section 510.21(1)
Section 1 of the 1916 Shipping Act, as amended by the Freight Forwarder Law of 1961, defines an “independent ocean freight forwarder” as “a person carrying on the business of forwarding for a consideration who is not a shipper or consignee or a seller or purchaser of shipments to foreign countries, nor has any beneficial interest therein, nor directly or indirectly controls or is controlled by such shipper or consignee or by any person having such a beneficial interest.” 46 U.S.C. § 801. Licensed forwarders must be truly independent of shippers and not have any beneficial interest in shipments in order to prevent the illegal rebating that occurs when brokerage is received by forwarders who are also shippers, shipper-owned or shipper-connected, or who have a beneficial interest in shipments. To fulfill this objective Rule 510.21(1) defines “beneficial interest” to include “any lien interest” of a forwarder “arising by the financing of the shipment.”
The New York Association argues that the rule is unlawful because it seeks to regulate forwarder financing activities which do not violate any provision of the Shipping Act. But Congress by its legislation in 1961 rejected this contention, and showed a clear intention to separate forwarders completely from all shipper interests. Legislation proposed by the forwarder industry sought to define “beneficial interest” to exclude a lien interest. However, the phrase “other than a lien,” urged upon Congress by the forwarders, was deleted from the words “beneficial interest therein other than a lien” submitted by them. Congress apparently accepted the agency’s position that “a lien on a shipment could give a freight forwarder sufficient beneficial interest in the shipment to cause payments thereon by the carrier to the forwarder to be a form of indirect rebate of the freight.” Senate Report No. 691, 87th Cong., 1st Sess., p. 4, U.S.Code Cong, and Adm. News 1961, p. 2702. We are not convinced that this legislative history should be ignored simply because of the suggestion that the urgent need for new legislation led the industry to accept the change without objection.
It is interesting that the rule also provides that “any obligation arising in favor of a licensee by reason of advances of out-of-pocket expenses incurred in dispatching of shipments shall not be deemed a beneficial interest.” We find the distinction thus drawn between a lien arising from financing and one created by a forwarder’s out-of-pocket expenses eminently reasonable. The forwarder routinely incurs out-of-pocket expenses in carrying out his functions for the shipper; he is usually reimbursed soon after the goods reach their destination. Indeed, the 1961 Law expressly lists “payment of the ocean freight charges” as a function a freight forwarder may perform and a basis for his receipt of compensation. 46 U.S.C. § 841b (e) (5). On the other hand, the financing of export shipments belongs primarily to the exporter or a financial institution, not to the independent ocean freight forwarder.
Although the challenged rule may limit some benign financing activities by forwarders, it provides a means to curb an evil Congress sought to correct — the collection of compensation from carriers by persons who have any interest in the goods being shipped. We hold that the rule is reasonable and necessary to prevent forwarders from selling goods under the guise of “financing” and then using this subterfuge to receive a discounted freight rate.
B. Section 510.22(a)
The contested portion of this rule provides that "No licensee may charge or collect compensation in the event he requests the carrier or its agent to perform any of the forwarding services set forth in * * * [section 44 of the 1961 Law], unless no other licensee is willing and able to perform such services.” The Maritime Commission thereby seeks to prohibit a forwarder from collecting compensation from a carrier if the carrier, at the forwarder’s request, has performed part of the freight forwarding service.
The New York Association urges that the rule is contrary to the 1961 Law because it may deprive a forwarder of compensation even though he has rendered sufficient services under section 44 (e). The forwarders direct our attention to the absence of specific statutory language prohibiting the rendering of free services by carriers in addition to the payment of brokerage. But this narrow approach ignores the Commission’s responsibility to enforce the broad objectives of the Shipping Act of 1916.
We find Section 510.22(a) reasonable.and necessary to prevent the erosion of the freight forwarder industry at ports other than New York. The rule seeks to prevent forwarders in the larger ports, who control cargo routing, from bypassing forwarders in the lesser ports. The development and free flow of this nation’s foreign commerce requires that local freight forwarders be available at all ports; achievement of that goal will be frustrated if carriers or their agents perform services at the lesser ports for' forwarders located in New York.
The forwarding industry’s history fully supports this conclusion. Absent the challenged regulation, the New York forwarders, because of their power to control cargo routing, can and do manipulate freight to the lesser ports in order to have the carriers perform services, without charge, normally executed by a forwarder. This practice deprives the lesser-port forwarders of fees; at the same time there is no reciprocity for these forwarders in New York. In its 1961 report the maritime agency wrote that:
“In order to avoid, where possible, the necessity of splitting brokerage payments, the New York forwarders have * * * entered into arrangements with the ocean carriers under which the work necessary to complete forwarding services * * * is accomplished by the ocean carriers without charge at ports such as Boston and Baltimore, and * * * Charleston and Savannah. Pursuant to these arrangements, the New York forwarders have diverted cargo from New Orleans to Savannah and Charleston in order to avoid the splitting of brokerage with New Orleans forwarders, because carriers have refused to perform outport forwarding services * * at New Orleans. The forwarders at Boston and Baltimore have requested that the carriers discontinue their performance of free forwarding services for the New York forwarders, or alternatively that like services be performed at New York on behalf of the Boston and Baltimore forwarders, but these requests have been refused. 6 F.M.B. 327, 345.”
In this connection we note that the New York forwarders’ approximately sixty percent share of the shipments handled by the industry, 6 F.M.C. 327, 337 (1961) seems grossly disproportionate when compared with the fact that «export tonnage passing through New York in 1961 was only twenty percent of the combined export tonnage of Boston, Philadelphia, Baltimore, and Norfolk-Newport News. 1963 Statistical Abstract of the United States, p. 600..
The challenged rule represents a reasonable effort by the Maritime Commission to fulfill its affirmative duty to implement the national maritime policy. Section 44(b) of the Shipping Act, 46 U.S.C. § 841b(b), establishing the licensing requirement for freight forwarders, requires “that the proposed forwarding business is, or will be consistent with the national maritime policies declared in the Merchant Marine Act, 1936.” We recognize the importance of the ocean freight forwarding industry to the American economy; without the industry’s services, our vital export trade would be at a serious disadvantage in the intense competition of world commerce. It is equally important that the forwarding industry flourish at the lesser ports to insure maximum utilization of all shipping routes to our trading associates in all corners of the world. Rule 510.22(a) is reasonable and necessary to prevent the New York forwarders from using their position of power to stifle forwarders at Boston, Philadelphia, Baltimore and Norfolk.
C. Section 510.28(j)
In substance, this rule requires a licensed forwarder to itemize or state separately in billing exporters the actual expenditures made on the shipper’s behalf as well as the fees assessed for his own services. Traditionally, the invoices of New York forwarders showed as one item the total charge for accessorial services such as procuring insurance, warehousing or cartage. This charge included the forwarder’s costs as well as his fee for arranging the service. The Maritime Commission believes that the proposed rule is necessary to prevent freight forwarders from using these billing methods to mark up insurance and accessorial charges indiscriminately.
The forwarders suggest that the rule will cause them to lose the gross profit customarily received in arranging for accessorial services, a loss they claim will seriously affect the profitability of their operations. They argue that the practice of including the disbursement and service fee as one item on the invoice to the shipper does not violate either Section 16 or Section 17 of the Shipping Act. Section 16 (First), 46 U.S.C. § 815, makes it unlawful for any forwarder to give an undue or unreasonable preference or advantage to one person or to subject a person to any undue or unreasonable prejudice or disadvantage. We agree with the Commission that substantial evidence before it indicated the traditional billing methods lead to discriminatory practices outlawed by Section 16 (First); we therefore find it unnecessary to consider whether Section 510.23 (j) is necessary to eliminate purported violations of Section 17.
It is true, as the New York Association argues, that there is no discrimination in the sense that some shippers are billed differently, for all bills treat the disbursement and service fee as one item. But this very method permits forwarders to discriminate in the amount of the charges levied against shippers. In its 1949 report the Maritime Commission noted:
“The most common abuses arise from the forwarders’ methods of billing — the failure to specify clearly and state separately all service charges, and to segregate them from actual out-of-pocket costs for accessorial services * * * This practice is unjust and unreasonable. Port of New York Freight Forwarder Investigation, 3 U.S.M.C. 157, 163 (1949).”
In 1961 the agency again concluded that markups “are imposed in a random fashion, vary from shipper to shipper and from shipment to shipment, and appear to bear no relation to the cost to the forwarder for his services of placing the insurance.” Investigation of Practices, Operations, Actions, and Agreements of Ocean Freight Forwarders, 6 F.M.B. 327, 340-41 (1961). The Maritime Commission properly relied on these earlier findings in drafting Section 510.23(j). The agency’s rule-making process is not conducted in an isolated vacuum but is a continuing one; evidence gathered in the past, so long as it is still relevant, may be useful in exploring solutions to present problems.
The forwarders argue that a Section 16 (First) violation is shown only when (1) two shippers are given unequal treatment, (2) the shippers are competitors, and (3) the preference to one or disadvantage to the other is the proximate cause of an injury; these prerequisites, they urge, are not supported by the Commission’s record. We hold, however, that the substantial evidence that forwarders, in random fashion, charge shippers disguised markups of widely varying amounts, for no apparent reason, suffices to establish discrimination in violation of Section 16 (First). In urging that all three prerequisites must be met, the forwarders rely upon cases involving alleged discrimination in transportation or wharfage charges. See, e. g., Agreement 8765-Gulf/Mediter-ranean Trade, 7 F.M.C. 495 (1963); Wharfage Charges and Practices at Boston, Mass., 2 U.S.M.C. 245 (1940). We find those cases not apposite. Transportation or wharfage charges are dependent upon the particular commodity involved; the cost for shipping or storing bananas, for example, bears no relation to the fees levied for heavy industrial equipment. To find an unlawful discrimination in transportation charges thus quite properly requires a showing of competitive relationship between two shippers who are charged different prices. But forwarders render substantially the same service to all shippers in procuring insurance or arranging for cartage; the commodity being shipped has little or nothing to do with the reasonableness of the fee exacted for the forwarder’s service. The very practice of charging shippers disguised markups of widely varying amounts on substantially identical services, without justification, seems to us to be prima facie discriminatory in a regulated industry. In any event, we do not believe competitive relationships must be shown to justify.the prophylactic disclosure technique of Rule 510.23 (j).
The New York Association argues that the proposed rule will not eliminate the supposed discrimination involved in assessing different charges for the same accessorial work. Requiring a forwarder to disclose his gross profit will not by itself, they urge, serve to prevent undue discrimination between similarly situated competitive shippers. But we cannot override the Commission’s expert judgment that an informed shipping public will upon learning the factual details eliminate the discriminatory and unfair practices resulting from hidden charges for accessorial services. Our role as judges is limited to weighing the reasonableness of the experts’ chosen means to eliminate a statutory violation,
t' Finally, the National Customs Brokers urge that the Commission should have adopted a more limited regulation requiring the forwarder to inform the shipper of the insured value, the insurance rate charged, and the fact that the forwarder may have charged the shipper for insurance at a rate over the forwarder’s own cost. This proposed modification would not require the forwarder to disclose his premium cost when he has utilized his own open policy. But the seeming reasonableness of the Custom Brokers’ proposal does not establish the unreasonableness of the Maritime Commission’s regulation.
We therefore hold that the itemized billing requirement of Section 510.23(j) is reasonable and necessary to prevent discriminatory practices violative of Section 16 (First) of the Shipping Act.
D. Section 510.24(e)
A licensed forwarder is required by this rule to certify to the carrier on each shipment for which compensation is claimed that he has solicited and secured the cargo, or booked it or arranged its space, and has performed at least two of the additional services enumerated in Section 44(e). The specificity required by the rule is intended to eliminate “automatic” collection of brokerage payments and to permit the carrier to determine the value of the section 44 services actually rendered.
The New York Association prefers the present practice whereby a forwarder, to obtain compensation from a carrier, furnishes one invoice and one certificate covering all shipments a forwarder handles on a single vessel. The Association advocates a single, general certification which does not particularize the forwarder’s services and may be used to cover an unlimited number of shipments. But the specific section 44 services performed by the forwarder will vary from shipment to shipment; a single, blanket certification for each voyage will reveal no more than a certification covering all shipments for a given month or even year. The Commission’s proposed regulation is fully supported by Section 44 (e)’s requirement that a forwarder certify that “he performed the above specified services with respect to such shipment.” (Emphasis added.)
Nor can we accept the Association’s suggestion that the regulation will necessarily result in a “mountain of paper work.” Only occasionally will additional documents be required — often the forwarder will be able to certify his claim on existing documents, such as a bill of lading.
Finally, the Association doubts that the check-off provisions will serve a useful regulatory purpose. It notes that if the Maritime Commission suspects that a certification, is false, it will still be neeesessary to call upon the forwarder to demonstrate that the mimimum services required by the statute have been performed. Of course, investigation will still be required, but the very purpose of the proposed rule is to narrow the inquiry to whether the checked-off services were performed with respect to a particular shipment and to ease the difficulties in ascertaining a certification’s conformity with the actual facts. A single or blanket certificate covering many shipments would make supervision difficult and invite evasion; we therefore hold that Section 510.24(e) represents a reasonable exercise of the Maritime Commission’s enforcement authority.
E. Section 510.24(g)
This rule provides that no forwarder, or person owned or controlled by such forwarder, may collect brokerage from an ocean carrier unless it has performed the statutorily enumerated services. When the original version of the rule was amended to exclude brokerage commissions on bulk cargo, all petitioners withdrew their objections except Farrell Shipping Co., Inc. and Farrell Bros. Brokerage, Inc.
The rule seeks to avoid wholesale evasion of Section 44(e) of the Shipping Act. That section is intended to avoid the evil of commission payments by carriers to forwarders where the forwarder has performed little or no service in connection with a shipment. It therefore provides, as we have already indicated, that a common carrier by water may compensate an ocean freight forwarder “when and only when” the freight forwarder certifies that he is licensed and “has performed with respect to such shipment the solicitation and securing of the cargo for the ship or the booking of, or otherwise arranging for space for, such cargo,” and at least two out of five additionally enumerated services. If licensed forwarders, or their alter egos, can collect brokerage commissions without certifying performance of the requisite number of services under section 44 (e
Question: This question concerns the second 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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sc_certreason
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J
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
SUTTON v. LEIB.
No. 143.
Submitted December 3, 1951.
Decided March 3, 1952.
John Alan Appleman and Edward D. Bolton submitted on .brief for petitioner.
A. M. Fitzgerald submitted on brief for respondent.
Mr. Justice Reed
delivered the opinion of the Court.
By reason of a divorce in an Illinois state court, with a judgment for monthly installments of alimony until remarriage, petitioner asserts that her divorced husband, the respondent Leib, is liable for unpaid installments of alimony. Asserting diversity jurisdiction, petitioner, a divorcee, filed suit in the United States District Court for the Southern District of Illinois. Claim for recovery is made, notwithstanding a later marriage by petitioner to another in Nevada, subsequently annulled in New York, for the period from the Nevada remarriage to her third presumably valid marriage in New York to a third man. .Jo respondent’s plea that the Illinois alimony obligation was finally ended by the Nevada remarriage of petitioner, Mrs. Sutton relied upon the' New . York annulment decree as determining that her Nevada marriage was void. ■ She contends that the Full Faith and Credit Clause of the Federal Constitution requires that Illinois hold her Nevada marriage void ab initio by virtue of the New York annulment; that as the annulment decree obliterates the existence of her Nevada marriage respondent is liable for unpaid alimony until her New York marriage to Sutton.
The trial court rendered summary judgment for respondent and the Court of Appeals for the Seventh Circuit affirmed. 188 F. 2d 766. The affirmance was bottomed on the conclusion that, as the Nevada’marriáge of petitioner was valid in Nevada, it terminated the liability for alimony under the Illinois judgment of divorce. The court thus gave full faith and credit to the Nevada marriage rather than the New York annulment. Because disposition of this case required treatment of an important question of federal law, review was granted on a writ of certiorari. 342 U. S. 846.
Facts. Petitioner, Verna Sutton, divorced respondent, Leib, in Illinois in 1939, and under the terms of the decree of divorce was awarded $125 “on or before the first day of each calendar month . '. . for so long as the plaintiff shall remain unmarried, or for so long as this decree remains in full force and effect.” On July 3, 1944, in Reno, Nevada, petitioner married Walter Henzel who had that day obtained a Nevada divorce from Dorothy Henzel, a resident of New York who had not been served in Nevada and who made no appearance there. One month later, August 3,1944, Dorothy Henzel brought a separate maintenance proceeding in the courts of New York. Walter Henzel defended this suit. The proceeding resulted in a decree in Dorothy Henzel’s favor, declaring Walter Henzel’s Nevada divorce from her “null and void.” With the service of Dorothy’s process on Walter, petitioner ceased living with him, and in January 1945 filed suit in New York for annulment of her marriage to him. In this proceeding Walter Henzel also appeared. On June 6, 1947, the New. York court entered an interlocutory decrée after trial which became final three months thereafter. This judgment declared that petitioner’s marriage to Henzel Was. “null and void” for the reason that he “had another wife living at the time-of said marriage.”
There was no appeal in Nevada from the Nevada divorce of the Henzels. No further action was taken in Nevada concerning the marriage of Henzel and petitioner, and no. appeal taken in New York from the judgnient holding the Henzels’ Nevada divorce null and void or from the judgment annulling the Nevada marriage of Henzel and petitioner. The jurisdiction of the New York courts to enter the judgments is unquestioned.
Analysis of Issues. Collection of alimony is sought against respondent who was not a party to any of the judicial proceedings in Nevada or New York and appears in none of the records from either state. Illinois law as to respondent’s liability governs the federal court’s decision of this case. But the responsibility for the decision of federal constitutional issues involved rests finally on this Court. This controversy presents, fundamentally, a problem of Illinois law, to wit, the Illinois rule as to thé effect of a subsequently annulled second marriage on the alimony provisions of an Illinois divorce awarding support until remarriage.
As the Full Faith and Credit Clause requires Illinois to recognize the validity of records and judicial proceedings of sister states, the conclusion will not vary because the post-divorce recorded events underlying this litigation took place in other states than Illinois. This is not an alleged conflict of decisions between states such as existed in certain tax and estate cases. Rather the situation -more nearly approaches Barber v. Barber, 323 U. S. 77. There Tennessee refused full faith and credit to a North Carolina judgment for arrears of alimony on the ground of its lack of finality in North Carolina. We reversed Tennessee’s decision, not on the ground of error in Tennessee rules of law but on our determination that the North Carolina judgment was final and therefore enforceable as a matter of federal law in Tennessee under the Full Faith and Credit Clause. So in this case, Illinois’ conclusion as to this claim for alimony must be reached under Illinois law on the basis of giving the various proceedings the effect to which the Constitution entitles them. In this way the Full Faith and Credit Clause performs its intended function of avoiding relitigation in other states of adjudicated issues, while leaving to the law of the forum state the application of the predetermined facts to the new problem. Riley v. New York Trust Co., 315 U. S. 343, 348-349.
Legal Effect of Nevada and New York Events. Petitioner and Henzel were married in Nevada. Thereafter petitioner, brought her putative husband before the New York court. Petitioner and Henzel subjected themselves to the jurisdiction of the New York court and its decree annulling their Nevada marriage was entered with jurisdiction, so far as this record shows, of the parties and the subject matter. The burden is upon one attacking the validity of a judgment to demonstrate its invalidity. That judgment is res judicata between the parties and is unassailable collaterally. As both parties were before the New York court, its decree of annulment of their Nevada marriage ceremony is effective to determine that the. marriage relationship of petitioner and Henzel did not exist at the time of filing the present complaint in Illinois for unpaid alimony. The effect in Illinois of the New York declaration of nullity on the obligation for alimony is a matter of Illinois law hereinafter treated. The New York annulment determines the marriage relationship that is the marital status of petitioner and Henzel, just as any divorce judgment determines such relationship. If the Nevada court had had jurisdiction by personal service in the state or appearance in the case of Henzel and the first Mrs. Henzel, its decree of divorce would have been unassailable in other states. So as to the New York decree annulling the marriage, New York had such jurisdiction of the parties and its decree is entitled to full faith throughout the Nation, in Nevada as well as ip Illinois.
The New York invalidation of the Nevada divorce of the Henzels stands in the same position. As Mrs. Henzel was neither personally served in Nevada nor entered her appearance, the Nevada divorce decree was subject to attack and nullification in New York for lack of jurisdiction over the parties in a. contested action.
This leads us to hold that the conclusion of the Court of Appeals quoted in note 2, supra, is incorrect under the facts of this case. The marriage ceremony performed for petitioner and Henzel in Nevada must be held invalid because then Henzel had a living wife. The NeV York annulment held the Nevada marriage void. Nevada declares bigamous marriages void.
.Conclusion. The determination that the New York’adjudications must be given full faith and credit in Illinois, however, does not decide this controversy. Although the federal courts must give the same force and effect to the New York decrees as Illinois does, a question of state law remains. Does Illinois give the marriage ceremony of an annulled marriage sufficient vitality to release Leib, the respondent, from his obligation to pay alimony subse-quently due?
Full faith to the New York annulment, which is conclusive everywhere as to the marriage status of petitioner and Henzel, compels Illinois to treat their Neváda marriage ceremony as void. The force of that rule, however, does not require that the effect of the New York annulment on rights incident to this declaration of the invalidity of the Nevada marriage ceremony shall be the same in all states; Annulment is, in respect to its effect, analogous to divorce. A valid divorce, one. spouse appearing only by constructive service, that frees the parties from the bonds of matrimony throughout the United States does not require a second state to accord its terms the same result in litigation over separable legal rights as the decree would have in the courts of the state entering the decree. Without reference to the effect of a divorce on incidents of the márriage relation where both spouses are actually before the court, we think it equally clear, as a matter of constitutional law, that Illinois is free to decide for itself the effect of New York’s declaration of annulment on the obligations of respondent, a stranger to that decree.
Although the present proceeding necessarily presents questions of state law, resting as it does upon diversity jurisdiction, the case does not present any non-federal issue suitable for separation and determination in the state courts. The remaining matters of state law are for the decision of the federal courts.
It is frequently said, as a legal fiction, that annulment makes the annulled marriage ceremony as though it had never occurred. That fiction is variously treated in different jurisdictions. For example in New York, the petitioner apparently would recover alimony, after annulment but not for the period between the remarriage ceremony and the annulment.
The Court of Appeals of the Seventh Circuit has declared on an issue'as to whether the petitioner’s claim for alimony bad been adjusted that there has been in this controversy no compromise of a disputed claim. See note 15, supra. We accept that ruling. That court has not had occasion to consider the effect of the annulment under the law of Illinois on the respondent’s alimony obligation.
Where there had been a valid foreign marriage, followed by an annulment, based partly on issues not here involved, Illinois has held that the obligation of a former husband to pay alimony until the wife “remarry” is terminated by the remarriage. What the Illinois rule is when the foreign (Nevada) marriage is judicially declared invalid, under present circumstances, or whether respondent, if liable at all, is liable for the period during which Henzel may have owed support under a rule such as that of Sleicher v. Sleicher, 251 N. Y. 366, 167 N. E. 501, has not, so far as we know, been determined.
■ The judgment of the Court of Appeals' should be reversed and the cause remanded to the Court of. Appeals for further proceedings in conformity with this opinion.
It is so ordered.
Mr. Justice Black agrees with the Court of Appeals and would affirm its judgment.
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be iproved, and the Effect thereof.” U. S. Constitution, Art. IV, § 1.
Pursuant to the section,. Congress early prescribed the effect substantially in- the words now used:
“Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which.they are taken.” 28 U. S. C. § 1738.
“We have' searched the numerous cases decid' ' by the Supreme Court of the United States on the subject of migratory divorce for a definitive holding as to thé judicial status of such divorce in the state that decreed it.- It appears to be assumed that the decree is valid and binding in the state where it is rendered. Thus Mr. Justice Frankfurter remarks in his concurring opinion, Williams v. North Carolina, 317 U. S. 287, 307, . . . ‘It is indisputable that the Nevada decrees here, like the Connecticut decree in the Haddock . . . case, . . . were valid and binding in the state where they were.rendered.’ And Mr. Justice Murphy, concurring in Williams v. State of North Carolina, 325 U. S. 226, 239, . . . states that ‘The State of Nevada has unquestioned authority, consistent with procedural due process, to grant divorces on whatever basis it sees fit to all who meet its statutory requirements. It is entitled, moreover, to give to its divorce decrees absolute and binding finality within the confines of its borders.’ And Mr. Justice Rutledge, dissenting in the same case, 325 U. S. at page 244, . . . comments on the fact that the Nevada judgment was not voided by the decision. ‘It could not be, if the same test applies to sustain it as upholds the North Carolina convictions. It stands, with the marriages founded upon it, unimpeached.’ He and Mr. Justice Black, also dissenting, both call attention to the fact that the Court, in its decision, does not hold that the Nevada judgment is invalid in Nevada. Hence, in spite of the absence of a clear-cut statement in any of the main opinions of the Court as to the status of the Nevada decree in Nevada after a successful extraterritorial challenge of it, we think we may spell out authority for our assumption that it survives, such challenge and remains in full force and effect within the confines of the state of Nevada until and unless it is set aside upon review in that state.
“Assuming the validity of the divorce in Nevada, then the party or parties thereto resumed full marital capacity in that state. It follows that, so far as the state of .Nevada is concerned, there was no inhibition against the remarriage of Walter Henzel in that state, and no reason appears for challenging his marriage there to plaintiff immediately after the decree of divorce was rendered. Under the terms .of the Illinois decree of divorce of plaintiff and defendant, such marriage immediately terminated the obligation of the latter to continue the alimony payménts required thereby. We think that obligation was not reinstated and revived by the subsequent annulment of the Nevada marriage in New York.” 188 F. 2d at 768.
Erie R. Co. v. Tompkins, 304 U. S. 64; Angel v. Bullington, 330 U. S. 183.
Barber v. Barber, 323 U. S. 77, 81.
Worcester County Co. v. Riley. 302 U. S. 292, and cases cited. In this case this Court held, p. 299, as a basis that the action was against a state without its consent, that the Full Faith and Credit Clause does not require uniformity of decision as to domicile between the courts of different states. Cf. Texas v. Florida, 306 U. S. 398, 410.
Riley v. New York Trust Co., 315 U. S. 343. In this case Georgia had .determined that decedent’s domicile was Georgia. New York had determined the domicile was New York. In an interpleader suit in Delaware, involving the transfer of stock of a Delaware corporation to one of the two personal representatives of decedent appointed by the respective states, this Court held, where neither personal representative had been a party to the determination of domicile in the state of the other, Delaware was free to determine the question of domicile and require delivery of the stock to that representative.
Barber v. Barber, supra, 86; Cook v. Cook, 342 U. S. 126, 128.
Treinies v. Sunshine Mining Co., 308 U. S. 66, 76-78.
Sherrer v. Sherrer, 334 U. S. 343.
Treinies v. Sunshine Mining Co., supra; Milliken v. Meyer, 311 U. S. 457, 462.
Cook v. Cook, supra, citing Williams v. North Carolina, 325 U. S. 226; Rice v. Rice, 336 U. S. 674. Cf. Sherrer v. Sherrer, supra.
Nev. Comp. Laws, 1929, § 4066; Poupart v. District Court, 34 Nev. 336, 123 P. 769.
See note 1, and Union & Planters’ Bank v. Memphis, 189 U. S. 71, 75.
Williams v. North Carolina, 317 U. S. 287, 291-304.
Estin v. Estin, 334 U. S. 541. See MacKay v. Mackay, 279 App. Div. 350, 110 N. Y. S. 2d 82.
Propper v. Clark, 337 U. S. 472, 489, et seq., and cases cited.
Furthermore the Court of Appeals has already determined that certain payments of alimony made to petitioner by respondent in settlement of installments accruing prior to the Nevada marriage do not amount to a compromise of the disputed claim. 188 F. 2d at 767-768. Cf. Moore v. Shook, 276 Ill. 47, 55, 114 N. E. 592; Darst v. Lang, 367 Ill. 119, 10 N. E. 2d 659.
Meredith v. Winter Haven, 320 U. S. 228; Propper v. Clark, supra, 486.
In re Wombwell’s Settlement, [1922] 2 Ch. 298. Here a.marriage settlement was in trust for the settlor “until the said intended marriage” and thereafter on declared trusts for the spouses. The marriage was annulled.. The settlor was held entitled to the funds as a /valid marriage was intended and this .one was void ab initio. Likewise Chapman v. Bradley, 33 L. J. Ch. 139. Cf. In re Garnett. 74 L. J. Ch. 570; Bishop v. Smith, 1 Vict. L. R. 313; P. v. P., [1916] 2 I.R. 400.
See Vernier, American Family Laws, § 53, Suits to Annul — Effect of Judgment, and § 48, Issue of Prohibited Marriages (this includes annulment).
New York declares some marriages void from the time their nullity is declared. McKinney’s Consolidated Laws of New York, Book 14, Domestic Relations Law, § 7.
For effect on different incidents, see Henneger v. Lomas, 145 Ind. 287, 44 N. E. 462 (seduction, tort); Burney v. State, 111 Tex. Cr. R. 599, 13 S. W. 2d 375 (seduction, criminal); Miller v. Wall, 216 Ala. 448, 113 So. 501 (marriage, later annulled, held annulment did not postpone distribution of estate, distributable marriage); Deeds v. Strode, 6 Idaho 317, 55 P. 656 (civil action); Figoni v. Figoni, 211 Cal. 354, 295 P. 2d 339 (distribution of community property).
This avoids double support to the wife. Sleicher v. Sleicher, 251 N. Y. 366, 167 N. E. 501. See Frank v. Carter, 219 N. Y. 35, 113 N. E. 549 (husband liable for necessaries pridr to annulment); In the Matter of Moncrief, 235 N. Y. 390, 139 N. E. 550 (child of annulled marriage, illegitimate).
The Sleicher case called forth many comments when it was handed down. See 43 Harv. L. Rev. 109; 30 Col. L. Rev. 877; 25 Ill. L. Rev. 99; 14 Minn. L. Rev. 93; 39 Yale L. J. 133.
Lehmann v. Lehmann, 225 Ill. App. 513, saying:
"We think that said-words as so used were intended by the parties to refer to the ceremony or act of marriage as distinguished from the status or relation thereafter.” P. 522.
“Even though it be considered that such marriage was not a valid one in Illinois, it was valid in New Jersey, where performed, and also valid in their subsequent successive domiciles, and we think that under all the facts disclosed it should be held, contrary to the finding of the chancellor in the decree appealed from, that she remarried within the meaning of. the words contained in said divorce decree of April 1, 1915, and in the written agreement entered into between the parties about that time, and that she thereby elected to forfeit, and did forfeit, her right to receive alimony for her own support thereafter from respondent.” P. 526.
The Illinois court was influenced by the practical construction given to the alimony decree by the parties. Pp. 516, 527. See Wilson v. Cook 256 Ill. 460, 100 N. E. 222.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_appel1_7_2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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").
ROSENBERG et al. v. BAUM et al.
No. 3160.
Circuit Court of Appeals, Tenth Circuit.
Jan. 8, 1946.
James H. Ottman and Daniel L. Brenner, both of Kansas City, Mo. (Irvin Fane and Ted F. Houx, Jr., both of Kansas City, Mo., Joseph Cohen, of Kansas City, Kan., and Johnson, Lucas, Graves & Fane and Roach & Brenner, all of Kansas City, Mo., on the brief), for appellants.
Joseph J. Dawes, of Leavenworth, Kan., for appellees.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
BRATTON, Circuit Judge.
Harry Rabinovitz, hereinafter called Harry, and Birdie Rabinovitz, hereafter called Birdie, were husband and wife. They resided in Leavenworth, Kansas, and they did not have any children. Harry died testate in 1922. By the terms of his will, he nominated Birdie as executrix; directed that his debts and funeral expense be paid; directed that $100 per month be paid to his sister, Sara Rosenberg, so long as she should live, or until the death of his wife; and gave the rest and residue of his estate to Birdie, for her life, with full power to use, sell, and dispose of the whole or any part thereof as she might deem proper. Subject to these provisions, it was further provided in the will that if there should be any remainder of the estate at the time of Birdie’s death it should go, twenty-five per cent to the testator’s sister, Sara Rosenberg; twenty-five per cent to his sister, Emma Richman; twenty-five per cent to his niece, Alice Rabinovitz; and twenty-five per cent to his sister-in-law, Salma Miller, with provision that if she should be dead at the time of the death of Birdie, then such portion should go to the children of her body living at the time of the death of Birdie. The will contained other provisions which do.not have any material bearing here. The will was admitted to probate in the probate court of Leavenworth County, and Birdie was appointed executrix. .She filed an inventory and appraisement •showing real and personal property of the ■estate. No claims were filed, the executrix ■did not file any reports or settlements, no ■orders were entered, and the proceeding is still pending. Birdie died testate in 1944. By her will, bequests -were made to her sister, Cora Feilchenfeld, her brother, Emanuel Ettlinger, and her nieces Joan Miller •and Marilyn Miller, daughters of Salma Miller who predeceased Birdie. The will ■was admitted to probate in the probate ■court of Leavenworth County, John Baum was appointed executor, and an inventory and appraisal was filed in the proceeding showing real and personal property in that county of the value of $37^000 and $56,972.-92, respectively. Ancillary proceedings were had in the probate court of Jackson County, Missouri, and Emanuel Ettlinger was appointed ancillary executor.
Sara Rosenberg, Emma Richman, and Alice R. Fradkin, nee Alice R. Rabinovitz, instituted this action in the United States Court for Kansas against Baum and Et-tlinger, executor and ancillary executor, respectively, of the estate of Birdie, Ettlinger and Cora Feilchenfeld, as legatees under the will of Birdie, and Joan Miller and Marilyn Miller as legatees under the wills of both Harry and Birdie. The purposes of the action were (1) to impress a trust upon certain real estate which had been conveyed to Birdie, and (2) for an accounting in respect of the assets of the estate of Harry. Defendants prevailed and plaintiffs appealed. For convenience reference will be made to the parties in the manner in which they appeared in the trial court.
Although they prevailed in the court below, the defendants assert that the court lacked jurisdiction. They argue that the probate court of Leavenworth County had exclusive original jurisdiction of the estate of Harry and that the United States Court was without jurisdiction of the subject matter of the suit. It is settled law in Kansas that under the Probate Code of 1939, Laws Kan. 1939, c. 180, the probate courts are vested with exclusive original jurisdiction of all matters incident and ancillary to the administration, management, control, settlement, and distribution of estates. Under the provisions of the code, the original jurisdiction of the probate courts-was extended so as to invest them with all necessary legal and equitable power to deal judicially with the administration of estates. Foss v. Wiles, 155 Kan. 262, 124 P.2d 438; Dixon v. Fluker, 155 Kan. 399, 125 P.2d 364; Swisher v. Bouse, 155 Kan. 797, 130 P.2d 565; Egnatic v. Wollard, 156 Kan. 843, 137 P.2d 188; Burns v. Drake, 157 Kan. 367, 139 P.2d 386; Bitzer v. Smith,. 158 Kan. 83, 145 P.2d 148.
A United States Court does not have jurisdiction to entertain a proceeding' purely of a probate character relating to-the administration of the- estate of a deceased person. Byers v. McAuley, 149 U.S. 608, 13 S.Ct. 906, 37 L.Ed. 867; Farrell v. O’Brien, 199 U.S. 89, 25 S.Ct. 727, 50 L.Ed. 101; Caesar v. Burgess, 10 Cir., 103 F.2d 503; Miami County National Bank v. Bancroft, 10 Cir., 121 F.2d 921; Harris v. Zion’s Savings Bank & Trust Co., 10 Cir., 127 F.2d 1012, affirmed 317 U.S. 447, 63 S. Ct. 354, 87 L.Ed. 390. But where, as here, diversity of citizenship is present and the requisite amount is in controversy, a United States Court has jurisdiction to determine questions relating to the interests of heirs, devisees, or legatees, which may be adjudicated without interfering with the control of the probate court in the general administration of the estate. Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80; Sutton v. English, 246 U.S. 199, 38 S.Ct. 254, 62 L.Ed. 664; Wells v. Helms, 10 Cir., 105 F.2d 402; Robinson v. Georgia Savings Bank & Trust Co., 5 Cir., 106 F.2d 944; Lathan v. Edwards, 5 Cir., 121 F.2d 183. And that jurisdiction can not be limited or curtailed by state legislation creating probate courts and vesting in them exclusive jurisdiction over the settlement of estates of decedents. Payne v. Hook, 7 Wall. 425, 19 L.Ed. 260; Miami County National Bank v. Bancroft, supra.
Coming to the merits, by warranty deeds executed and recorded in 1908, 1918, and 1921, respectively, certain lots in Leavenworth were conveyed to Birdie, and the legal title remained in her at the time of her death. Plaintiffs seek to impress a constructive trust upon the lots. They contend that the lots were acquired with money belonging to Harry; that Birdie and Harry agreed that she should hold the legal title in trust for him; and that the legal title is now held in trust for the benefit of the plaintiffs and the defendants Joan Miller and Marilyn Miller, legatees under the will of Harry. It is the adjudicated rule in Kansas that where real estate is purchased for a consideration paid by the husband and the conveyance is made to the wife, a presumption arises that it is intended as a gift from him to her. Olson v. Peterson, 88 Kan. 350, 128 P. 191; Clester v. Clester, 90 Kan. 638, 135 P. 996, L.R.A. 1915E, 648; Page v. Pierce, 92 Kan. 149, 139 P. 1173; Manhattan State Bank v. Haid, 97 Kan. 297, 155 P. 57. The further rule in that state is that where property is acquired for a consideration paid by one person and the title is taken in the name of another, a trust does not arise or result in favor of the former unless the two agree, without fraudulent intent, that the one to whom the title is conveyed shall hold the property or some interest in it for the benefit of the one furnishing the consideration. And the showing that the consideration was so furnished, the title so taken, and the agreement so entered into must be clear and convincing to the tribunal authorized to determine the controverted issue. Kull v. Pearl, 147 Kan. 329, 76 P.2d 790.
Recognizing these principles, plaintiffs endeavored to show that the lots were acquired with funds belonging to Harry and that Birdie and Harry agreed that she should hold the title in trust for him. Sara Rosenberg testified that Harry was a rich man, that he always had a lot of money, and that he contributed to the support of his relatives. Sara Rosenberg and Emma Richman testified that Birdie did not have any money or property at the time of her marriage and that she did not inherit any estate afterwards. Too, there was testimony that she did not follow any gainful employment during her married life. Sara Rosenberg, Emma Richman, Alice Fradkin, and Abe Rabinovitz, a nephew of Sara Rosenberg and Emma Richman and a cousin of Alice Fradkin, testified that they heard Harry state to his father that he had purchased the lots and had caused them to be conveyed to Birdie, and that Birdie thereupon stated that she held the title for him and would convey them to him at any time he desired.- The court did not make any specific finding as to the source of the money with which the real estate was purchased, but the court expressly found that Birdie did not agree with her husband that she would hold the title in her name in trust for his use and benefit and did not agree to convey the property to him. In short, the court declined to give decisive credence to the testimony offered relating to the source of the money with which the property was acquired and as to the agreement between Harry and Birdie that she held title in trust for him. Plaintiffs argue that the testimony was not contradicted and that the court should have accepted and adopted it. Where unimpeached witnesses testify distinctly and positively to a fact and are not contradicted, their testimony should under ordinary circumstances be credited and have the effect of overcoming presumptions. But that rule is subject to qualifications. There may be such inherent unreasonableness or improbability in the statements made by the witnesses as to deprive them of credit, however positively made. Though unimpeached, the witnesses may manifest such an interest in the question as to dilute their credibility. Their attitude may completely discredit the testimony. Physical facts may dispute it. And other circumstances may render it unworthy of belief. In such case the court or jury is not required blindly to adopt the 'testimony. Instead, the court or jury may in the exercise of sound judgment decline to give it decisive credence, though it is not contradicted by direct adverse testimony. Quock Ting v. United States, 140 U.S. 417, 11 S.Ct. 733, 851, 35 L.Ed. 501; Lowenstein v. I. N. Platt & Co., 2 Cir., 58 F.2d 173; United States v. Washington Dehydrated Food Co., 8 Cir., 89 F.2d 606; Goodyear Tire & Rubber Co. v. Federal Trade Commission, 6 Cir., 101 F.2d 620, certiorari denied, 308 U.S. 557, 60 S.Ct. 74, 84 L.Ed. 468; Emanuel v. Kansas City Title & Trust Co., 8 Cir., 127 F.2d 175. Viewing the testimony of the witnesses in the light of that rule and taking into consideration all of the facts and circumstances shown in the case, particularly that the lots were not included in the verified inventory and appraisal which Birdie filed, that from the time of the filing of the inventory until after the death of Birdie- — more than twenty-two years — plaintiffs did not raise any question concerning the accuracy of the inventory and failed until after the death of Birdie to assert or indicate in any other manner a belief or understanding that she merely held the title in trust, i't cannot be said that the court erred in failing to find that the lots were acquired for a consideration furnished by Harry and that Birdie agreed with Harry to hold the title in trust for him.
Plaintiffs also seek to impress a trust upon certain lots in Kansas City, Missouri. It is their contention that Birdie acquired these lots with funds belonging to the estate of Harry, and that they are held in trust for the benefit of plaintiffs and the defendants Joan Miller and Marilyn Miller, legatees under Harry’s will. In 1930, Birdie purchased a note in the sum of $5,000, secured by a deed of trust on part of the lots. In 1936, the deed of trust was foreclosed and she became the purchaser at the trustee’s sale. In 1930 or 1931, Birdie purchased a note in the sum of $16,000, secured by a deed of trust on other lots. . In 1933, the deed of trust was foreclosed and she purchased the lots as the sheriff’s sale. In 1936, Birdie purchased a third note in •the sum of $15,000, secured by a deed of trust on still other lots; and in 1939, the lots were conveyed to her in satisfaction of the debt. These several properties have stood in the name of Birdie ever since they were acquired in the manner outlined. The court found that Birdie acquired the lots with her own funds and not with funds belonging to the estate of Harry. It is to be noted that the three notes were acquired eight years, eight or nine years, and fourteen years, respectively, after the death of Harry. The face amount of each note was shown, but there was no showing in respect to the amount paid for them, and there was no direct evidence as to the source of the money or other consideration with which they were purchased. The evidence relating to the matter was indirect, meager, and sketchy. The evidence and the inferences fairly to be drawn from it presented an issue of fact as to whether the funds or other consideration paid for the notes belonged to the estate of Harry or to Birdie individually. That issue was for the trial court. The court found it against the plaintiffs and the finding is not dearly erroneous. Accordingly, it must stand on appeal. Patton v. Lewis, 10 Cir., 146 F.2d 544; Gerson v. Anderson-Prichard Production Corp., 10 Cir., 149 F.2d 444; Flores v. Bruesselbach, 10 Cir., 149 F.2d 616.
The court found that at the time of the death of Harry, the total value of his estate was $43,276.13; and that under the power and authority granted by the terms of the will, Birdie sold and disposed of all of the assets of the estate listed and described in the inventory for $52,500, in cash. Those facts were stipulated and the findings are not challenged. The time of the sale or sales is not shown. The court further found that Birdie expended $28,445 in payment of debts which Harry owed at the time of his death, and that she expended the further sum of $974.75 for funeral expenses, aggregating $29,419.75. The court further found that Birdie made the monthly payments of $100 to Sara Rosenberg, as directed in the will, beginning in 1922 and ending in 1944, totaling $25,500. That finding is not attacked. The court further found that Birdie expended for her support, maintenance, comfort and travel the sum of $100 per month from the date of the death of Plarry until his estate was consumed. Based upon those findings, the court further found that the entire estate of Harry was consumed and used up prior to Birdie’s death, and that at her death no assets of any kind remained in the estate for distribution to the remaindermen under his will.
Plaintiffs challenge the allowance of credit for payment of some of the debts of Harry on the ground that there was no sufficient proof affirmatively showing that the payments were actually made. It would not serve any useful purpose to detail the evidence relating to each separate item. It is enough to say that there was direct evidence of some of the payments and circumstantial evidence of the others. A careful examination of the record is convincing that the finding of the court in respect of the payments was not clearly erroneous. Therefore it is not to be overturned on appeal. Patton v. Lewis, supra; Gerson v. Anderson-Prichard Production Corp., supra; Flores v. Bruesselbach, supra.
The allowance of credit for all of the amounts paid by Birdie in the discharge of obligations of the estate of Harry and in settlement of the funeral expenses is attacked on the further ground that claims were not filed in the probate proceeding, and the probate court did not allow the claims or ratify their payment. Plaintiffs say that an executrix cannot claim credit for payment of alleged claims against the estate which have not been presented to, allowed by, or ratified by the probate court having jurisdiction of the estate. Section 22-709, General Statutes of Kansas 1935, provides that no probate court shall allow any demand against an estate unless the claimant makes oath in open court or files with the claim an affidavit stating that, to the best of his knowledge and belief, credit has been given for all payments and offsets, and that the balance claimed is justly due; and section 22-711 provides that an executor or administrator may pay in its regular order any duly verified demand against the estate not in excess of $50. Payment of a claim of more than $50 without allowance is contrary to law and made at the hazard of the executor or administrator. Wright v. Stage, 86 Kan. 475, 121 P. 491; In re Kappelman’s Estate, 101 Kan. 654, 168 P. 876. But it has been held that where the assets are sufficient to pay all claims in full, the probate court may subsequently ratify the action of the executor or administrator in making payment of a just debt without approval and give him credit for the amount. In re Kappelman’s Estate, supra. It is to be remembered that this is an action in equity, and it can be maintained only on equitable grounds. Young v. Scott, 59 Kan. 621, 54 P. 670. Having found that the funds were expended in payment of just demands against the estate, to disallow credit for them now would in effect exact double payment. The technical irregular payment of the demands without their allowance by the probate court d:d not give rise to any present substantial injury to the remaindermen which a court of equity is required to redress by disallowing credit for the amount.
Plaintiffs urge in effect that all or some of the assets reflected in the inventory and appraisal filed in the probate proceeding affecting the estate of Birdie are in fact assets of the estate of Harry. According to the inventory and appraisal, Birdie left an estate in excess of $100,000. Plaintiffs ask pointedly where she could have accumulated an estate of that size. The lots in Leavenworth deeded to her long prior to the death of Harry represent approximately $37,000 of the amount. The source of the balance of the estate is not clear. It may well be that Henry’s life was insured in a substantial amount with Birdie as the beneficiary. The record is completely silent in that respect. And it may be that Birdie accumulated the estate by her own foresight and judgment. Birdie sold for $52,500 the assets listed in the inventory and appraisal filed in the probate proceedings of the estate of Harry, but the increment to the estate by way of earnings or otherwise is not shown persuasively. The only things shown with certainty are that Birdie received $52,500 for the original assets, that she paid out $29,419.75 in settlement of Harry’s debts and funeral expenses, that she paid out $25,500 to Sara Rosenberg, the two aggregating $54,919.75, and that her living expenses were about $100 per month. It thus appears that the case is freighted with elements not established with mathematical exactness. But in a case of this kind, involving the conduct of Birdie extending over a period of twenty-two years, where records are not only meager but almost nonexistent, a reasonable latitude must be allowed the trial court for well founded inference, deduction, and conclusion. A court of equity in such circumstances cannot be restricted to rigid and inflexible certainties. It must employ and be guided to some extent by reasonable inferences and approximations. On the whole, we are unable to say that the finding of the court that at the death of Birdie no assets remained in the estate of Harry for distribution to the remaindermen under his will was clearly wrong. And therefore it will not be disturbed here. Patton v. Lewis, supra; Gerson v. Anderspn-Prichard Production Corp., supra; Flores v. Bruesselbach, supra.
Plaintiffs contend that an executrix occupies a fiduciary relation of the highest order; that she is under the duty to keep and render clear and accurate accounts ; that the burden is on her to exhibit a clear and accurate account, especiálly where she has commingled funds of the estate with his personal funds; that Birdie failed to keep clear and accurate accounts as executrix; that she commingled funds of the estate with her own funds; that the burden rested on the defendants to exhibit clear and accurate accounts; and that they failed to discharge the burden. As previously stated, Birdie did not file any reports in the probate court, and it is fairly apparent from the record that she failed to keep separate accounts as executrix but- commingled the funds of the estate with her personal funds. It is held in Kansas that an executor or administrator occupies a fiduciary relation of the very highest order in respect of the funds belonging to the estate; that it is his duty to keep the funds separate from his own funds; that when the report of account of an executor or administrator is challenged, or an action is brought against him by an administrator with the will annexed, an administrator de bonis non, or an heir or legatee, the burden rests upon him to exhibit a clear and accurate account; and that in such an action or proceeding, any credits, the accuracy of which is not sufficiently established by him, will be rejected. Vincent v. Werner, 140 Kan. 599, 38 P.2d 687; In re Park’s Estate, 151 Kan. 447, 99 P.2d 849. Where he fails to pay out funds in his hands belonging to the estate when ordered, he- may be charged with interest from the time of his neglect to obey the order of the court. Wollard v. Peterson, 145 Kan. 631, 66 P.2d 375. And where he commingles funds belonging to the estate with his own personal funds, sells to the estate bonds belonging to himself individually, at a profit, and fails to keep clear and accurate accounts, he may be surcharged with compound interest on the trust funds which he commingled with his own. Vincent v. Werner, supra. But Birdie did not fail to obey any order of the court, and there was no indication that she sold personally owned property to the estate at a profit or committed any other wrong of that kind.
Birdie was more than executrix of the will of Harry. Under the terms of the will, she had a life estate with power o'f disposal. As life tenant with power of disposal, she could convey the property belonging to the estate. Ernst v. Foster, 58 Kan. 438, 49 P. 527; Greenwalt v. Keller, 75 Kan. 578, 90 P. 233; Pearson v. Orcutt, 107 Kan. 305, 191 P. 286. It was a qualified power of disposition, .in that she could not make a gift of it or dispose of it by will. Greenwalt v. Keller, supra. But otherwise she- could control and dispose of it in the usual and ordinary manner as though she owned it in fee. Otis v. Otis, 104 Kan. 88, 177 P. 520. She was authorized to pay Harry’s debts and funeral expenses, make the monthly payments to Sara Rosenberg, support and maintain herself according to her own pleasure, and use the balance in any manner that she saw fit, except that she could not dispose of it by gift inter vivos or by will. It was only in the event that she failed to exercise her right of disposal, or exercised the right and acquired other property which was held as part of the estate, that any property passed to the remainder-men at her death. Postlethwaite v. Edson, 98 Kan. 444, 155 P. 802; Scott v. Gillespie, 103 Kan. 745, 176 P. 132, certiorari denied 249 U.S. 606, 39 S.Ct. 289, 63 L.Ed. 799; Otis v. Otis, supra. And in a case of this kind for an accounting, brought by the re- ■ maindermen under the will against the personal representatives of the estate of the deceased executrix, who was also life tenant of the estate with power of disposition, the burden rested upon the plaintiffs to show that the property belonging to the estate had not been consumed or exhausted at the time of the death of the life tenant. They were required to show that assets belonging to the estate existed at the death of the life tenant and thereupon passed to the remaindermen. Seward v. Davis, 198 N.Y. 415, 91 N.E. 1107; In re Welsh’s Estate, 239 Pa. 616, 86 A. 1091; Cf. Swarthout v. Ranier, 143 N.Y. 499, 38 N.E. 726. Plaintiffs failed to discharge that burden and therefore were not entitled to recover on accounting.
The remaining contention which merits a word is that a judgment, decision, or determination by a judge or chancellor prior to a hearing of all the evidence amounts to a deprivation of property without due process. The argument is that the court prejudged at least one issue in the case. Certain comments or observations of the court and certain questions propounded to witnesses are emphasized in support of the point. The presiding judge made pertinent comments or observations from time to time and also propounded relevant questions to witnesses, but there is not the slightest basis for the contention that any justiciable issue was prejudged or that the trial was conducted in an unfair manner. On the contrary, the trial judge of long experience presided with becoming impartiality and fairness.
The judgment is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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songer_appel1_3_3
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O
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant.
CATTLE FEEDERS TAX COMMITTEE, an unincorporated association, and Western Heritage Land and Cattle Company, a partnership, Plaintiffs-Appellees, v. Hon. George SHULTZ, Secretary of the Department of the Treasury of the United States of America, et al., DefendantsAppellants.
No. 73-1896.
United States Court of Appeals, Tenth Circuit.
Oct. 4, 1974.
Rehearing Denied Nov. 11, 1974.
David H. Rosenberg and Ben L. Krage, of Rosenberg, Kasmir & Willing-ham, Dallas, Tex. (Cyril D. Kasmir, Dallas, Tex., with them on the briefs), for plaintiffs-appellees.
Richard M. Roberts, Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwaeks, Crombie J. D. Garrett, and Carleton D. Powell, Tax Div., Dept, of Justice, Washington, D. C., on the briefs), for def endants-appellants.
PICKETT, Circuit Judge.
The purpose of this action is to enjoin United States Treasury officials from enforcing a departmental ruling and for judgment declaring the ruling to be invalid. The rule affects farmers who file income tax returns on a cash receipts and disbursements basis and deduct as an ordinary business expense the cost of feed to be consumed by livestock in years other than the taxable year. The trial court, following an evidentiary hearing on an application for a temporary injunction, considered the case on its merits, held that the Government could not ultimately prevail, and permanently enjoined the enforcement of the ruling. The decisive question presented is whether the action is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a). It is the Government’s position that there are no special circumstances in this case which would prevent the application of the statute. We ágree.
As alleged in the complaint, the Tax Committee is an unincorporated association whose members sponsor and form limited partnerships which principally engage in the purchasing, grazing, feeding and marketing of cattle. Western Heritage Land and Cattle Company is a partnership doing business in Oklahoma as the sponsor and general partner of limited partnerships which purchase, graze, feed, and market cattle. Western Heritage and those represented by the Tax Committee solicit investments from the public to be used in the purchase of cattle and feed. Although the investors are limited partners, the management of these public funded cattle-feeding and marketing programs is exclusively in those offering the investments. The feed for the cattle is generally purchased in the late months of the year but is not utilized until a following taxable year. Consequently, during a year in which the purchases are made there is no income and the relationship between the - operating company and the investors is such that those who are on a cash basis of accounting may, in computing their income taxes for that year, deduct as an expense the full amount of their proportional share of the feed costs. The trial court found that the income distortion test provision of Rev. Rui. 73-530 may reasonably be expected to result in the disallowance of income tax deductions for prepaid feed to be used by farmers, resulting in a destruction of the incentive for investment in the cattle-feeding industry, thereby causing irreparable injury to appellees’ businesses by depriving them of investment capital.
Income Tax Regulation § 1.471-6 (a) provides that a farmer “may make his return upon an inventory method instead of the cash receipts and disbursements method. It is optional with the taxpayer which of these methods of accounting is used.” Income Tax Regulation § 1.162-12 provides that the “purchase of feed and other costs connected with raising livestock may be treated as expense deductions insofar as such costs represent actual outlay. . . . ” No contention is made that the appellees are not farmers as the term is used in the regulations. See Hi-Plains Enterprises, Inc. v. C.I.R., 496 F.2d 520 (10th Cir. 1974). It is argued that the Internal Revenue Service is bound by these regulations and cannot require farmers, in computing their income taxes, to use inventories through the guise of the income distortion tést.
The purpose of Section 7421(a) is to give the United States a free hand in assessing and collecting taxes claimed to be due without intervention on the part of the courts, and to limit a determination of disputed sums to a suit for refund. Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). The Williams Packing case recognized the broad sweep of the anti-injunction statute and held that an injunction could.be obtained against the assessment of tax only upon a showing that two factors exist: (1) That under no circumstances could the Government ultimately prevail, and (2) a basis for equity jurisdiction exists. In recent decisions the Supreme Court has discussed the purpose of Section 7421(a) as interpreted by Williams Packing, supra, and others, particularly Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422 (1932), and under facts analogous to those of the instant case it held the statute applicable. Alexander v. “Americans United” Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (May 15, 1974); Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (May 15, 1974). In these two cases the complainants claimed they were within the tax exempt status of 26 U.S.C. § 501(c)(3) and the Internal Revenue Service had issued the required letters which established that they were organizations to which tax deductible contributions could be made. The Internal Revenue Service later announced that, for stated reasons, the ruling letters would be revoked and donors would no longer have advance assurance that donations to the organizations would be treated as charitable contributions. In these cases it was held that actions to enjoin the revocation of the letters, although not brought by a taxpayer, were primarily to restrain the assessment and collection of a tax and within the prohibition of Section 7421(a). In Bob Jones, supra, 416 U.S. at 739, 94 S.Ct. at 2047, it is said:
. Moreover, petitioner seeks to restrain the collection of taxes from its donors — to force the Service to continue to provide advance assurance to . those donors that contributions to petitioner will be recognized as tax-deductible, thereby reducing their tax liability. Although in this regard petitioner seeks to lower the taxes of those other than itself, the Act is nonetheless controlling. Thus in any of' its implications, this case falls within the literal scope and the purposes of the Act.
The appellees recognize the impact of the Bob Jones and Americans United decisions, but contend that if the action is one controlled by Section 7421(a), the record discloses that they are irreparably injured by the ruling with no adequate remedy at law and that the Government cannot ultimately prevail; therefore, they are within the Williams Packing exception. We think this contention is answered in the Bob Jones and Americans United cases. The Court, in Bob Jones, supra 416 U.S. at 742, 94 S.Ct. at 2048, said:
Williams Packing indicates that the case was meant to be the capstone to judicial construction of the Act. It spells an end to a cyclical pattern of allegiance to the plain meaning of the Act, followed by periods of uncertainty caused by a judicial departure from that meaning, and followed in turn by the Court’s rediscovery of the Act’s purpose.
The Court continued:
Williams Packing switched the focus of the extraordinary and exceptional circumstances test from a showing of the degree of harm to the plaintiff absent an injunction to the requirement that it be established that the Service’s action is plainly without a legal basis. The Court in essence read Standard Nut not as an instance of irreparable injury but as a case where the Service had no chance of success on the merits. 370 U.S., at 7, 82 S.Ct. at 1129. And the Court explicitly held that the Act may not be evaded “merely because collection would cause an irreparable injury, such as the ruination of the taxpayer’s enterprise.” Id., at 6, 82 S.Ct. at 1129. Yet petitioner’s argument that we should find Williams Packing inapplicable turns, in the last analysis, on its claim that to do otherwise would subject it to great harm. The Court rejected that consideration in Williams Packing itself, and we reject it as a reason for finding that case not controlling. Under the language of the Act, the degree of harm is not a factor, and as a matter of judicial construction, it does not provide a meaningful stopping point between Standard Nut and Williams Packing. Acceptance of petitioner’s irreparable injury argument would simply revive the evisceration of the Act inherent in Standard Nut. (416 U.S. at 745, 94 S.Ct. at 2050)
We are of the opinion that the appellees do not bring themselves with either of the two requirements of the Williams Packing case exception. The question of whether the Government can ultimately prevail must “be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained.” 370 U.S., supra, at 7, 82 S.Ct. at 1129. The court’s function in this injunction suit is not to try out the validity of Rev.Rul. 73-530, but to determine if there is any basis upon which the ruling can be upheld. 26 U.S.C. § 461(a) provides:
The amount of any deduction or credit allowed by this subtitle shall be taken for the taxable year which is the proper taxable year under the method of accounting used in computing taxable income.
The provisions of 26 U.S.C. § 471 are:
Whenever in the opinion of the Secretary or his delegate the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventories shall be taken by such taxpayer on such basis as the Secretary or his delegate may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income.
26 U.S.C. § 446(a) provides that taxable income shall be computed under the method which the taxpayer regularly uses in computing his income. The Government argues that this provision is subject to that of Section 446(b), which requires the computation of' taxable income to be made on a basis which clearly reflects income. Sections 446 and 461(a) appear to implicitly allow the Commissioner to adjust a taxpayer’s method of computing taxable income in a manner which will clearly reflect income. Authority for this procedure is found in 26 U.S.C. § 7801 et seq. We can not hold that the action of the Government in promulgating Rev.Rul. 73-530 is plainly without any legal basis or that it cannot ultimately prevail under any circumstances. Nor can we say as a matter of law that the ruling is not an interpretative action authorized by 26 U.S.C. § 7801 et seq.
The appellees are in substantially the same situation as the complainants in Bob Jones and Americans United. In each instance they are not the taxpayer but allege an injury because third parties are adversely affected by I.R.S. rulings. In each case it was alleged that irreparable injuries occurred because the rulings effectually “destroyed their business” with no remedy in the courts. As observed in Bob Jones and Americans United, allowing injunctive relief on irreparable injury alone would render Section 7421(a) meaningless. In Williams Packing the Court stated that if Congress had desired to make injunctive remedy available against the collection of federal taxes not lawfully due, it would have said so explicitly. It is now settled that the degree of harm is not a factor in determining the application of Section 7421(a). Bob Jones, supra; Williams Packing, supra. Furthermore, any investor in appellees’ businesses could litigate the validity of the ruling in a suit for refund or in the Tax Court. It is indicated that at least some of the organizations represented by the Tax Committee and possibly Western Heritage could claim the cost of prepaid feed costs as an expense deduction and would be in a position to challenge the order.
Reversed and remanded with instructions to dismiss the action.
. The ruling, Rev.Rul. 73-530 published in Internal Revenue Bulletin 1973-49 dated December 3, 1973, provides that before a farmer can deduct the cost of feed to be consumed by his livestock in the following year, three tests must be met: First, the expenditure must be a payment for the purchase rather than a mere deposit; second, the prepayment must be made for a business purpose, and not merely for tax avoidance; third, the deduction of such costs in the tax-, able year of prepayment must not result in a material distortion of income.
. Section 7421(a) provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.”
. Tins statement had reference to the Standard Nut and like cases. Referring to Standard Nut, the Court said :
. . . Read literally, the Court’s opinion effectively repealed the Act, since the Act was viewed as requiring nothing more than equity doctrine had demanded before the Act’s passage. . . . (416 U.S. at 744, 94 S.Ct. at 2050)
. The legislative history of Section 461 states:
Section 461 adopts the provisions of section 43 of the 1939 Code in rearranged form. The timing of deductions . . . is determined by the taxpayer’s method of accounting. The method must clearly reflect the income of the taxpayer. (3 U.S. Code Cong. & Admin.News (1954) p. 4300)
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant?
A. Department of Agriculture
B. Department of Commerce
C. Department of Defense (includes War Department and Navy Department)
D. Department of Education
E. Department of Energy
F. Department of Health, Education and Welfare
G. Department of Health & Human Services
H. Department of Housing and Urban Development
I. Department of Interior
J. Department of Justice (does not include FBI or parole boards; does include US Attorneys)
K. Department of Labor (except OSHA)
L. Post Office Department
M. Department of State
N. Department of Transportation, National Transportation Safety Board
O. Department of the Treasury (except IRS)
P. Department of Veterans Affairs
Answer:
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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).
TINDLE et al. v. HEINER, Collector of Internal Revenue.
Circuit Court of Appeals, Third Circuit.
April 4, 1927.
No. 3594.
Internal revenue <@=37(19)— -Leasing by owner for years and subsequent sale of house held “transaction entered into for profit,” and loss on sale held deductible from income (Revenue Act 1918, § 214 [a] [5] being Comp. St. § 6336i/8g).
Owner of a house worth on March 1, 1918, $120,000, and which though originally built as a residence for himself, had been abandoned as such and for a number of years had been rented, and continued to be until it was sold in 1920 for a less sum, held entitled to a deduction of the difference from gross income for that year under Revenue Act 1918, § 214 (a) (5), being Comp. St. .§ 6336%g, as a loss in a “transaction entered into for profit.”
In Error to the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge.
Action at law by James R. Tindle and another, executors of will of Philander C. Knox, deceased, against D. B. Heiner, Collector of Internal Revenue. From the judgment, plaintiffs bring error.
Reversed.
For opinion below, see 17 F.(2d) 522.
James Walton, of Pittsburgh, Pa., for plaintiffs in error.
John D. Meyer, U. S. Atty., of Pittsburgh, Pa., A. W. Gregg, Gen. Counsel, Bureau of Internal Revenue, and Frederick W. Dewart, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for defendant in error.
Sachs & Caplan, of Pittsburgh, Pa., amici curias.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
BUFFINGTON, Circuit Judge.
This ease centers around the word “transaction”— “transaction entered into for profit” — as used in the Revenue Act of 1918 (40 Stat. c. 18, § 214 [a] [5]; Comp. St. § 6336i/8g) in respect to losses allowed as deductions in income tax returns. What in point of fact is the transaction we are here dealing with? Was it one Congress meant to cover by this section? Viewed as an entirety the transaction involved is this:
In 1887-1888 the late Philander C. Knox bought ground in the city of Pittsburgh and built a residence thereon at a cost in all of $172,000. In 1920 he sold this property and residence for $73,706.79, so that, taken as a whole, the transaction, begun in 1887 and ended in 1920, constitutes a single whole from the viewpoint of buying and selling; but, when this single whole is considered from the standpoint of the use to which the property had, meanwhile, been put, it resolves itself into two distinct and wholly different transactions: First, the property was used by him as a residence; he built the house for that purpose, and so used it until 1901. This transaction was therefore a distinctively home, residential, one. In 1901, however, he entered into national public life, and gave up the property as a residence, and never afterward occupied it. He acquired a residence by living in a different ward of the city, and retained it up to the time of his death for occasional residential and seasonal voting purposes, and, as stated by counsel at the hearing, his regular winter residence was in Washington City, where he bought and occupied a home, and his summer residence in a home he owned at Valley Forge, Pa. With the ending of his occupation of his Pittsburgh home, he rented the same on long-term leases. His first lease was in October, 1901, for 3% years, later for a term of 10 years, and thereafter for shorter terms, until the property was finally sold.
With the giving up of his residence, all sentimental connection in the use of the hoqse as a home ended, and thereafter the use of the property was by others under lease from him, during the running of the first lease for 3 years, to wit, from October 1, 1901, and then from April 1, 1905, for 10 years. During the running of these leases he was, of course, unable to sell the property, by reason offihe use he was making of it and the leases he had given for his own profit. Such being the status of the transaction, the ordinary one of owning real estate for leasing purposes, the situation of the property under the second or 10-year lease when the income tax law of 1913 was passed, was a distinctively nonresidential and a distinctively business leasing of real estate for profit. We think we are justified in regarding the transaction here involved by its then and subsequent status. The situation was in no wise different than it would have been, had he always owned and used the property for renting purposes, and never for residential purposes, because the residential use had finally and forever ceased at the time of the passage of the income tax law.
What, then, was the fact and status in money value of this property when the income tax law of 1913 was passed? It was a distinctively renting transaction, and in this transaction was involved the use for renting of property of the agreed upon then value of $120,000. Any system of bookkeeping in this transaction would have had charged against it an investment of $120,000, represented by real estate, a.nd the rents upon the same would have been profits. What, then, would have been the result of this transaction when it was finally closed? Clearly, instead of profits, a loss, represented by the shrinkage in value of' the property during that time-of $46,293.21.
But, assuming the situation was one where some might contend, as did the court below, that the language of Congress was intended to treat the transaction as a purchase and sale of property, without reference to what its use was during the interim, it seems to us the opposite view might very reasonably be taken of holding Mr. Knox’s tenure as made up of two transactions — one, the residential one, which had ceased to exist long before, and to which the law did not apply; the other, a purely business venture, unfortunate in its results, but one which the law fairly contemplated should be offset against other items of income which the owner of the property sustained. It seems to us, therefore, with this double interpretation in the balance, that the law would then resolve that uncertainty against the government in favor of the taxpayer. Assured as we are that this latter transaction was one entered into and carried on for profit, the decedent in the assessment of his net income should have been allowed credit for the loss resulting therefrom.
The judgment below will therefore be reversed, with instructions to enter judgment for the taxpayer’s estate.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
James L. ELZY, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.
No. 85-4583
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Jan. 31, 1986.
T. Gerald Henderson, Alexandria, La., for petitioner.
General Counsel, RRB, Bureau of Law, Stephen A. Bartholow, Rachel M. Lopez, Chicago, 111., for respondent.
Before RUBIN, REAVLEY and HILL, Circuit Judges.
PER CURIAM:
James L. Elzy appeals the denial by the Railroad Retirement Board of his claim for a disability annuity under the Railroad Retirement Act. Because we find that the Board’s decision is supported by substantial evidence, we affirm.
Factual Background
Elzy worked as a track foreman for Missouri Pacific Railroad from 1968 until 1980, when he injured his back. Following his injury, Elzy underwent surgery, which, although successful, was not able to completely eliminate his problem. On June 3, 1981, Elzy filed with the Railroad Retirement Board (the “Board”) an application for an annuity under the Railroad Retirement Act. Under the Act, an individual who is unable to engage in any regular employment because of a permanent physical or mental condition is eligible for a disability annuity. 45 U.S.C. § 231a(a)(l)(v) (1982).
The Board obtained medical reports of Elzy’s condition, and; in September of 1981, the Bureau of Retirement Claims, the Board’s initial adjudicating unit, found that Elzy’s back injury was not severe enough to prevent him from performing regular and substantial work.. His claim for a disability annuity was therefore denied. At the request of Elzy’s attorney, the Bureau reconsidered its decision, but again denied the claim. Elzy appealed to the Bureau of Hearings and Appeals, the Board’s intermediate appellate unit. After a hearing, an appeals referee sustained the decision of the Bureau of Retirement Claims. Elzy then appealed to the Board itself, and, after obtaining additional medical evidence (to which it subsequently did not refer in its decision), the Board adopted the decision of the appeals referee.
Discussion
Disability claims under the Railroad Retirement Act are evaluated under the same sequential process required by social security regulations. See 20 C.F.R. § 404.1520 (1985); Burleson v. Railroad Retirement Board, 711 F.2d 861, 862 (8th Cir.1983). This process requires the Board to determine initially that Elzy is not working, has a severe mental or physical impairment, and is unable to do the kind of work he has done in the past. There is no dispute that Elzy meets these initial requirements of the evaluation process. The dispute in this case centers on findings of fact made as part of the last step of the process, which requires the Board to determine whether Elzy can perform work other than what he did before the injury. 20 C.F.R. § 404.-1520(f)(1) (1985).
Under the last step of the evaluation process, the Board must make a factual determination of Elzy’s personal characteristics; that is, the Board must make determinations regarding Elzy’s residual functional capacity, age, work experience and education. Id. The Board must then determine whether significant numbers of jobs exist in the national economy for a person with Elzy’s personal characteristics. See id. at §§ 404.1560(b)(3) and 404.1566. This determination is usually made by comparing an applicant’s personal characteristics to Medical-Vocational Guidelines, which represent an administrative determination that a significant number of jobs exist in the national economy for individuals with specific characteristics. See id. at § 404, App. 2.
In this case, the Board adopted the findings by the appeals referee that Elzy is not functionally illiterate and that he is capable of performing light work. An individual of Elzy’s age (49 at the time of the Board’s decision) and work experience (unskilled) who is not illiterate and who can perform light work is not considered disabled under the guidelines, and the Board so concluded.
Elzy challenges the findings that he is capable of light work and that he is not illiterate, asserting that they are not based on substantial evidence. He also argues, apparently, that the finding that significant work activities exist for him in the national economy, made implicitly through use of the guidelines, is not supported by substantial evidence because the appeals referee did not hear testimony from a vocational expert.
Before examining Elzy’s challenges to the Board’s findings of fact, we must note that our scope of review is limited. The Board’s findings are conclusive if there is substantial evidence to support them. 45 U.S.C. § 231(g) (1982); Kurka v. United States Railroad Retirement Board, 615 F.2d 246, 250-51 (5th Cir.1980). Evidence is substantial if it consists of “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). While we require more than a mere scintilla of evidence, we may not substitute our judgment for that of the Board. See Davis v. Schweiker, 641 F.2d 283, 285 (5th Cir.1981).
I.
Elzy first challenges the finding that he has a residual functional capacity for light work. Residual functional capacity is a term of art designating an applicant’s capacity for work on a regular and continuing basis despite a physical or mental impairment. 20 C.F.R. § 404.1545 (1985). The determination combines a medical assessment of an applicant’s physical or mental condition with descriptions by physicians, the applicant, and others of any limitations on the applicant’s ability to work. Id. Light work is defined as work which “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects up to 10 pounds____ [and which] requires a good deal of walking or standing ....” 20 C.F.R. § 404.1567(b).
The evidence regarding Elzy’s capacity to work is conflicting. The record contains observations and conclusions of five doctors, and, while the medical assessments appear to agree that Elzy’s back injury constitutes a permanent physical impairment, the doctors do not agree on the extent to which the injury limits Elzy’s ability to work. Three doctors, including the physician who performed Elzy’s back surgery, concluded that while Elzy could not perform heavy labor or return to his railroad job, he could perform tasks involving light lifting and walking. Two of the doctors, however, concluded that Elzy was “100% disabled,” R. 85, and “disabled from resuming any gainful employment.” R. 87.
In addition to the conflicting medical assessments of his ability to work, Elzy’s own testimony regarding his capacity to work is inconsistent. Elzy testified personally that he was limited in his capacity to work because he could not sit, stand or walk for long periods of time without suffering from back pain, but he also testified that he could sit for two hours, that he spent his days sitting and standing, and that he could lift and carry a one-gallon can of gas. In addition, medical reports from his treating physician noted that “Elzy is taking approximately from 8 to 10 pain tablets a month ..., is doing his walking exercises and relates that he walks a mile per day.” R. 78.
Conflicts in the evidence, including those arising in the medical opinions, are to be resolved by the Board. Laffoon v. Califano, 558 F.2d 253, 254-55 (5th Cir. 1977). Moreover, the weight to be given a physician’s statement is dependent upon the extent it is supported by specific clinical findings. See 20 C.F.R. § 404.1513 (1985); Jones v. Heckler, 702 F.2d 616, 621 (5th Cir.1983). Thus, the Board could properly discount the medical assessments stating that Elzy was completely disabled. Finally, it is up to the finder of fact to determine a witness’s credibility in light of conflicting evidence. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.1984). Thus, the Board could properly discount Elzy’s own assessment of his capabilities. Despite the inconsistencies in the record, we conclude, therefore, that the Board’s finding that Elzy is capable of light work is supported by substantial evidence.
II.
Elzy also challenges the Board’s finding that he was not functionally illiterate. Despite Elzy’s claim that he was illiterate, school records indicate that he had completed the ninth grade. Moreover, Elzy himself admitted that he had completed the ninth grade, that he could write a letter if he had to, and that there were other railroad foremen who could not read or write as well as he could. Given the school records and the conflicts in Elzy’s own testimony, it was again up to the Board to determine the credibility of his claim of illiteracy and weigh the evidence. We conclude that there is substantial evidence to support the Board’s finding that Elzy was not functionally illiterate.
III.
Finally, Elzy apparently asserts that the conclusion that “significant numbers of jobs exist [for him] in the national economy,” implicitly made through reliance on the Medical-Vocational Guidelines, is not supported by substantial evidence because there is no testimony by a vocational expert supporting that conclusion. 20 C.F.R. § 404.1560(b)(3) (1985). This court has consistently permitted reliance on the guidelines alone as a means of determining whether work is available to an applicant. See, e.g., Johnson v. Heckler, 767 F.2d 180, 182 (5th Cir.1985). Only where an applicant suffers from limitations on his ability to work, such as extreme and constant pain, which are not reflected in a simple description of the applicant’s personal characteristics, will we require use of a vocational expert. See, e.g., Lawler v. Heckler, 761 F.2d 195, 197 (5th Cir.1985). In such cases, the additional limitations affect the applicant’s ability to find work in a way which cannot be measured by the guidelines.
In this case, the guidelines provide sufficient evidence to support a conclusion that jobs exist which Elzy can perform. Elzy does not challenge the Board’s specific conclusion that any “pain associated with [Elzy’s] back impairment is treated only occasionally and of itself is not an additional severe impairment.” R. 30. Moreover, while Elzy is certainly limited in his capacity to work, his limitations were taken into account in the Board’s determination that he is capable of performing only light work. That determination, as discussed above, is supported by substantial evidence. Since Elzy has no limitations in addition to those, reflected in his personal characteristics, we conclude that use of a vocational expert was unnecessary in this case.
AFFIRMED.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
LOCAL 879, ALLIED INDUSTRIAL WORKERS of AMERICA, AFL-CIO, and International Union, Allied Industrial Workers of America, AFL-CIO, Plaintiffs-Appellees, v. CHRYSLER MARINE CORPORATION and Chrysler Corporation, Defendants-Appellants.
No. 85-2872.
United States Court of Appeals, Seventh Circuit.
Argued April 17, 1986.
Decided May 20, 1987.
Frederick A. Muth, Jr., Whyte & Hirsch-boeck, S.C., Milwaukee, Wis., for defendants-appellants.
Kenneth R. Loebel, Habush Habush & Davis, Milwaukee, Wis., for plaintiffs-ap-pellees.
Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
Appellants Chrysler Marine Corporation and Chrysler Corporation (“Chrysler” or “the Company”) appeal from the district court judgment enforcing an arbitrator’s award and awarding attorney’s fees to ap-pellees International Union, Allied Industrial Workers of America and Local 879 (“the Union”). Jurisdiction was based on § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. For the reasons set forth below, we will Affirm the enforcement of the arbitrator’s award, and Reverse the grant of attorneys’ fees.
FACTS
In May, 1983, Chrysler and the Union began to negotiate a successor agreement to that covering the Company’s Hartford and Beaver Dam, Wisconsin, plants, which was due to expire on June 30, 1983. Because of rumors that. Chrysler was considering closing or selling these plants, the Union twice proposed severance pay plans, both of which Chrysler rejected. In agreeing to a new contract, the Union accepted a company letter of intent stating that “in the event the Company should close all of its Hartford and/or Beaver Dam Plants, the Company will provide the Union six (6) months advance notice of such closing and will negotiate with the Union regarding a Severance Pay Plan.”
In August, 1983, Chrysler began to negotiate with Bayliner Corporation for the sale of the Hartford and Beaver Dam plants. Bayliner agreed to acquire Chrysler’s assets, to operate the Hartford plant for one year, excluding a reasonable transition period, and to operate the Beaver Dam plant for at least two months. The sale was originally scheduled to become effective December 30, 1983. The agreement was reached December 8,1983 and the sale was first made known to the Union and the employees at that time.
On December 12, 1983, the Union filed a grievance alleging that the sale was a closing which violated the June 30 agreement because six months’ notice had not been given. It requested that the closing be delayed for at least six months for negotiation of a severance pay plan. Chrysler denied the grievance, contending that the sale was not a closing, and the issue was ultimately submitted to arbitration.
The Union immediately brought suit to enjoin the sale pending arbitration. The district court granted a preliminary injunction, but on January 9, 1984, this court granted a stay, finding that the risk of irreparable injury weighed most heavily against Chrysler. The preliminary injunction was reversed May 31, 1984, 735 F.2d 1367. Both orders were unpublished.
On January 11, 1984, Chrysler informed all employees at both plants that effective January 13, 1984, they would no longer be employed. Ownership of the Hartford assets was transferred to the buyer on January 13, 1984, but the Beaver Dam assets were never sold, and operations there continued without interruption. Although Bayliner did not guarantee that the Company’s employees would be retained, as of February 6, 1984, 223 of 272 former Chrysler employees were employed at the Hartford plant.
The parties then proceeded with arbitration as provided by their collective bargaining agreement. On May 30, 1984, the arbitrator issued an award. The arbitrator found that the term “close” applied to the sale of the Hartford operation and that Chrysler had therefore obligated itself to give six months’ notice of the sale, and to negotiate a severance pay plan. He ordered several adjustments, affecting groups of employees, consistent with the theory that the sale could not have occurred less than six months after December 8, 1983, the date the employees learned of it. These adjustments are not in issue on this appeal. He also directed the parties to attempt to agree upon a severance pay plan comparable to plans in comparable relationships. He stated his opinion “that had such negotiations occurred prior to the effectuation of the sale in question, the Union would have been in an advantageous bargaining position, since the Company would probably have sought its acquiescence to a waiver of the six months’ notice requirement which would have enabled it to. meet the purchaser’s demands with respect to the timing of the transaction. Based upon these considerations, it is the undersigned’s opinion that the Union would in all likelihood have been able to negotiate a severance pay plan which provided benefits comparable with the more generous of such plans in existence at that time in comparable employee-union relationships.”
The parties were given 90 days in which to negotiate, after which the proceeding would be reconvened at the request of either party. Chrysler brought an action seeking to set aside the award. The parties did not negotiate, and the arbitrator reconvened the proceeding.
A supplemental award was issued on March 15, 1985, including, among other things, a severance pay plan for all former Chrysler employees. The arbitrator reviewed severance pay plans collectively bargained in three plants neighboring Chrysler’s. Based upon them, he termed the plan awarded “a fair and generally comparable severance pay plan.” The arbitrator stated that because it was impossible to determine with any certainty the Union’s and the employees’ damages as a result of Chrysler’s violation of the contract, he had attempted in the first award to provide an incentive for the Company to reach an agreement with the Union. That having failed, imposition of a severance pay plan is “the most viable way of affording the employees whose contractual rights were violated meaningful relief, and of imposing upon the Company obligations which in any way coincide with the obligations it had at the time of the contractual violation.” Supplemental Award at 14. The arbitrator also observed that no lesser or more traditional remedy, such as a cease and desist order or a direction to bargain, could be effective because the parties no longer had a bargaining relationship and Chrysler had no incentive to reach an agreement with the Union. Even employees hired by Bay-liner were to receive severance pay, because when Chrysler ceased operations, its employees had no rights to employment with the buyer. Moreover, while one purpose of severance pay is to provide income between jobs, it also compensates employees for their service and for termination for reasons unrelated to their conduct.
The district court ordered enforcement of both awards. It found that the arbitrator’s construction of the contract did not manifestly ignore the agreement, and that the creation of the severance plan was within the scope of his remedial powers. The court also awarded attorney’s fees incurred by the Union to enforce the award.
ARBITRATION AWARD
This court has repeatedly stressed that review of an arbitration award is extremely limited. See International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and Local 449 v. Keystone Consolidated Industries, Inc., 782 F.2d 1400, 1402 (7th Cir.1986) and cases cited therein. So long as the arbitrator interpreted the contract in making the award, even if arguably incorrectly, it must be upheld. Ethyl Corp. v. United Steelworkers of America, 768 F.2d 180, 187 (7th Cir.1985).
An award may be overturned only if the arbitrator must have based his. award on his own personal notions of right and wrong, for only then does the award fail “to draw its essence from the collective bargaining agreement” as required by the Supreme Court in United Steelworkers v. Enterprise Wheel,- 363 U.S. 593, 597, 80 S.Ct. 1353, 1361, 4 L.Ed.2d 1424, and by ourselves in Ethyl Corporation, 768 F.2d at 184-85; Jones Dairy Farm v. Local No. P-1236, United Food and Commercial Workers International Union, 760 F.2d 173, 176 (7th Cir.1985), certiorari denied, — U.S.-, 106 S.Ct. 136, 88 L.Ed.2d 112; Miller Brewing Co. v. Brewery Workers Local Union No. 9, 739 F.2d 1159, 1162 (7th Cir.1984), certiorari denied, 469 U.S. 1160, 105 S.Ct. 912, 83 L.Ed.2d 926....
This low standard of review is essential to prevent a “judicialization” of the arbitration process. Ethyl Corporation, 768 F.2d at 184. Arbitration is an alternative to the judicial resolution of disputes, and an extremely low standard of review is necessary to prevent arbitration from becoming merely an added preliminary step to judicial resolution rather than a true alternative. Id. The parties have bargained ex ante for arbitration as an alternative means of dispute resolution, and ex post they must abide by this bargain. Camacho [v. Ritz-Carlton Water Tower, 786 F.2d 242, 244 (7th Cir.1986)].
E.I. Dupont de Nemours v. Grasselli Employees Independent Ass’n of East Chicago, Inc., 790 F.2d 611, 614 (7th Cir.1986).
Chrysler does not challenge the arbitrator’s construction of the collective bargaining agreement nor his finding of a breach by failing to give the Union six months’ notice of the sale and failing to negotiate regarding a severance pay plan. Instead, it argues that the remedy awarded exceeds the authority granted to the arbitrator by the contract.
The arbitration clause provides that: [t]he decision of the arbitrator shall be final, and binding on all parties. The arbitrator shall have authority only to decide questions as to the meaning and application of the terms of this Agreement, and such arbitrator shall have no authority to change existing rate ranges, incentive base rates or day work rates, for any labor grade or to add, delete or modify any of the terms of this Agreement.
Chrysler contends that by creating the duty “out of whole cloth” to provide severance pay, the arbitrator modified the terms of the agreement by imposing the obligation to come to terms, where only negotiations had been bargained for. It also argues that the arbitrator’s reasoning was faulty, and that the award to employees who were hired by Bayliner exceeds his remedial powers by creating a windfall and contradicting the parties’ bargaining history-
We disagree.
When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There is the need for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet the particular contingency.
United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960); see Miller Brewing Co. v. Brewery Workers Local Union No. 9, 739 F.2d 1159, 1163 (7th Cir.1984) (“Collective bargaining agreements often say little or nothing about the arbitrator’s remedial powers; yet it cannot be that he has none; and since he derives all his powers from the agreement, the agreement must implicitly grant him remedial powers when there is no explicit grant.”).
Concerning the breadth of such implication, we have said,
In these circumstances we must consider whether it is at all plausible to suppose that the remedy he devised was within the contemplation of the parties and hence implicitly authorized by the agreement. Only if we think it clearly was not may we reverse.
Id. at 1164. See also United Elec., Radio and Mach. Workers of Am., Local 1139 v. Litton Microwave Cooking Products, 728 F.2d 970, 972 (8th Cir.1984) (en banc); Desert Palace, Inc. v. Local Joint Executive Bd. of Las Vegas, 679 F.2d 789, 793 (9th Cir.1982) (as long as solution is within general framework of agreement, arbitrator may decide what parties would have agreed had they foreseen the dispute).
Of course, if Chrysler had given six months’ notice of its sale and had negotiated in good faith, but unsuccessfully, for a severance pay plan, no plan could have been imposed upon it under the collective bargaining agreement. Here, however, Chrysler has made it impossible to determine with certainty what would have been the result of negotiation either if six months’ notice had been given, or, as seems more likely under the circumstances, Chrysler had also sought a Union waiver of the full six months’ notice period. “We cannot say that the arbitrator clearly exceeded his authority or violated the collective-bargaining agreement, when he resolved doubts as to the remedy against the party that had broken its promise.” United Electric, 728 F.2d at 972.
The arbitrator carried out what appears to be a careful and reasonable determination of a plan which would probably have resulted from negotiation under the latter assumption. Expressly conferring on the arbitrator, as the agreement does, the authority to decide the meaning and application of the agreement, necessarily implies the authority to find that there has been a breach of the agreement as interpreted, and, we think, further implies the authority to prescribe a remedy which can be said reasonably to cure the breach. Thus the award was within the range of remedial authority which can reasonably be said to be implied by the contract.
Other remedies did not appear feasible, and Chrysler proposes none; indeed, its position leads to the conclusion that the arbitrator was helpless to provide redress for the Company’s breach, a conclusion not mandated by the agreement or by common sense. Cf. Grigoleit Co. v. United Rubber, Cork, Linoleum and Plastic Workers of Am., Local No. 270, 769 F.2d 434, 440-41 (7th Cir.1985); United Elec. Radio & Machine Workers of Am. v. Honeywell, Inc., 522 F.2d 1221, 1226 (7th Cir.1975) (arbitrators have flexibility in formulating remedies); Mogge v. District 8 Int’l Ass’n of Machinists, 454 F.2d 510, 514 (7th Cir.1971) (where contract is not explicit concerning the proper remedy, arbitrator has wide latitude in fashioning appropriate remedy).
Chrysler challenges the arbitrator’s assumption that the contractual entitlement to six months’ notice of the sale gave the Union bargaining power by withholding consent to a shortening of the notice period. In this challenge, Chrysler relies on this court’s stay and reversal of a preliminary injunction against proceeding with the sale in January, 1984 after only one month’s notice.
This argument rests on an inapt comparison between the premises of the court’s decision and those of the arbitrator’s. This dispute was whether the “sale” was a “closing” under the collective bargaining agreement. That issue had not been resolved when this court decided that Chrysler’s risk of irreparable hardship if it lost the sale opportunity and ultimately won on the merits was much greater than the Union’s risk if the sale occurred and it ultimately won on the merits. Before the arbitrator prescribed the remedy, however, he had reached the merits and determined the Company’s contractual obligation not to sell without six months’ notice.
This court’s two unpublished orders did not, of course, address the merits of the dispute, nor even assess the probability of success. They were plainly based on this court’s evaluation of the respective risks of irreparable injury. The stay order (incorporated also in the final order) suggests that this court perceived an award of (if not agreement on) a severance pay plan as at least a very probable outcome, for it said, at page 5:
Finally, as we previously stated, if Chrysler is not permitted to complete the sale, there is a substantial likelihood that Chrysler will lose large amounts of money greatly in excess of the $1,000 injunction bond filed by the union in this case. After all, in a large commercial transaction such as this, time is sensitive and of the essence. The union members face no such dilemma. If the sale is completed, the Union still has the opportunity to arbitrate severance pay under the collective bargaining agreement against a solvent Chrysler. If the arbitrator finds an award of severance pay to be proper in this instance, then every union member not hired by Bayliner will be entitled to such pay. The arbitrator’s award of severance pay will be in the form of money damages, easily calculable, and within the power of the panel to award. The Union simply cannot complain of irreparable harm if it is remitted to this remedy. Moreover, arbitration may be avoidable since Chrysler has offered to pay in settlement the severance pay proposed by the Union immediately prior to the time the labor contract was signed.
Chrysler further points out that most of the affected employees were hired by Bay-liner, the purchaser of the Hartford plant. Chrysler seems to contend that even if a severance pay plan is an appropriate remedy, it “must be limited to former hourly Chrysler employees who, despite reasonable efforts, have not secured other employment.”
It relies on two decisions which held that pension administrators’ interpretation of employers’ severance pay policies so as not to afford benefits to persons employed by a successor employer did not violate ERISA. Sly v. P.R. Malloy & Co., Inc., 712 F.2d 1209 (7th Cir.1983) and Jung v. FMC Corp., 755 F.2d 708 (9th Cir.1985). These cases involved different situations and have little pertinence here.
ATTORNEY’S FEES
The district court also awarded the Union attorney’s fees incurred to enforce the award, but without any explanation, or finding of bad faith or frivolous litigation. Some courts have held that although § 301 of the LMRA does not provide for the shifting of costs and fees in suits for enforcement of awards, when a challenger refuses to abide by an arbitrator’s decision “without justification,” attorney’s fees and costs may be awarded. See, e.g., Teamsters Local Union No. 764 v. J.H. Merritt & Co., 770 F.2d 40, 43 n. 2 (3rd Cir.1985); Amalgamated Meat Cutters Local Union 540 v. Great Western Food Co., 712 F.2d 122, 125 (5th Cir.1983); Int'l Union of Petroleum & Indus. Workers v. Western Indus. Maintenance, Inc., 707 F.2d 425, 428-29 (9th Cir.1983).
This court has stated that normally when no statute authorizes the award of attorney’s fees “the prevailing party is entitled to attorney’s fees only if his opponent’s suit or defense was frivolous, which our cases define to mean brought in bad faith — brought to harass rather than to win.” Miller, 739 F.2d at 1167. More recently, since the amendment of Rule 11, F.R.Civ.P., we have held that the test under present Rule 11 is objective, and that a finding of bad faith is not essential. See Brown v. National Bd. of Medical Examiners, 800 F.2d 168, 171 (7th Cir.1986) (standard under revised Rule 11 is objective reasonableness under the circumstances). Here there was no finding of bad faith, nor do we see evidence thereof. We do not deem Chrysler’s position so devoid of arguable merit as to warrant sanctions under Rule 11.
The award of attorney’s fees is Reversed, and the judgment is Affirmed in all other respects. Costs on appeal are allowed to plaintiffs.
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_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.
NASHUA CORPORATION, Plaintiff, Appellee, v. RCA CORPORATION, Defendant, Appellant.
Nos. 7540, 7553.
United States Court of Appeals, First Circuit.
Aug. 3, 1970.
William K. Kerr, New York City, with whom David W. Plant, Paul L. Brown, Fish & Neave, New York City, William R. Hulbert, and Fish & Richardson, Boston, Mass., were on brief, for RCA Corp.
L. William Bertelsen, Boston, Mass., with whom Robert J. Horn, Jr., Herbert P. Kenway, Kenway, Jenney & Hildreth, Boston, Mass., Joseph M. Kerrigan, Chester H. Lopez, and Hamblett, Kerrigan, LaTourette & Lopez, Nashua, N. H., were on brief, for Nashua Corp.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
The principal question presented by these cross appeals is whether the district court erred in holding invalid as obvious an RCA patent — Greig patent 3,052,540 [hereinafter sometimes patent ’540] — which specified 29 organic dyes which increase the sensitivity of the electrophotographic copying paper used in many office copying machines.
Harold Greig, a scientist employed by RCA, obtained the patent in 1962 on the basis of discoveries made in 1953. Soon thereafter RCA granted a license to various companies, including Nashua Corporation, to use its patent in the manufacture of electrophotographic copying paper. Nashua paid royalties for some four years, until it served notice on RCA of its belief in the invalidity of the patent and continued using dyes similar to those set forth in patent ’540 without paying royalties. Nashua brought suit for a declaration of patent invalidity and a refund of four years’ royalties; RCA counterclaimed for infringement. The district court held that the patent was invalid and thus not infringed but that Nashua was not entitled to a refund of royalties. Nashua Corporation v. RCA Corporation, 307 F.Supp. 152 (D.N.H.1969). RCA appeals from the first two determinations, Nashua from the third.
The district court’s opinion contains a comprehensive description of the pertinent technology and the processes underlying the contested patent. Briefly, one method of copying original documents by electrophotography involves coating the copy paper so that it will receive and retain in darkness an electrostatic charge (the quality of “dark resistivity”) and then exposing the electrostatically-charged paper to light, thereby causing the charges to disappear from the exposed portions of the copy paper (the quality of “photoconductivity”). The area which retains the electrostatic charge — a latent image of the document being copied — is then developed by application of a fine powder which is attracted to the remaining charges.
In 1951 Greig invented a coating— consisting of certain white zinc oxide powders dispersed in an insulating resin binder — for which RCA obtained a patent [hereinafter patent ’539] whose validity is not contested. However, although the coating had the qualities of dark resistivity and photoconductivity, it was not sensitive to ordinary light sources, requiring violet light or light beyond the visible spectrum, i. e., ultraviolet light. This deficiency meant that copying time was fairly slow and that colored marks could not be reproduced.
These problems were overcome in 1953 when Greig discovered that by adding certain organic dyes to the coating on the copying paper, the coating became photoconductive to ordinary light sources. Greig’s patent ’540 set forth 29 organic dyes which alone or in combination sensitized the coating in the afore-described manner.
The issue before us is whether Greig’s 1953 discovery would have been obvious at that time to a person having ordinary skills in the existing art. 35 U.S.C. § 103 (1964). More precisely, the issue involves a two-part analysis: whether the concept of dye sensitization, as a possible means of making the patent '539 coating photoconductive to ordinary light sources, would have been obvious in 1953, and if so, whether the selection of the 29 organic dyes set forth in patent ’540 would have been obvious in 1953, to one trying to dye-sensitize the patent ’539 coating. We bear in mind that the determinations underlying the question of obviousness are essentially factual ones primarily entrusted to the district courts. Graham v. John Deere Co., 383 U.S. 1, 5, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Koppers Co. v. Foster Grant Co., 396 F.2d 370, 372 (1st Cir. 1968).
Confronting the first of our two questions, we read RCA’s brief on appeal virtually to concede that the concept of dye sensitization would have been obvious in 1953 to one seeking to render the patent ’539 coating photoconductive to ordinary light. On the evidence presented to the district court, that conclusion seems well-founded. Greig, a chemical engineer with prior experience in synthesizing organic dyes, testified at trial that, in early 1953, “with the background of dye chemistry * * * I was aware that if you want response from visible light, you are going to get into color,” with “color” used as a generic reference to various methods and materials, including the use of organic dyes. Moreovei’, Greig’s research notebook contained an entry for May 27, 1953, where, in addition to two pages devoted to other work, Greig had entitled a third page, “Subject: The possibility of increasing the sensitivity of the electrophotographic paper by organic sensitizers,” and had begun his 11 line discussion by writing that
“the question, will an organic dye of the type used by the photographic industry sensitize the electrophoto-graphic paper, has been asked by quite a few persons upon viewing the electrostatic printing.”
This suggestion that dye sensitization was in 1953 an obvious avenue to explore in order to overcome patent ’539 coating’s unresponsiveness to ordinary light is confirmed by other indicia of the existing art in 1953. As early as 1873, H. W. Vogel discovered the sensitizing effect of certain organic dyes on silver bromide and other silver salts, concluding that silver bromide could be made sensitive to ordinary light for any desired color by adding such dyes. Wall, History of Three-Color Photography, 211-212 (1925). Furthermore, four articles by two Americans, West and Carroll, were published in 1947, 1950, and 1951 dealing with dye sensitization of silver halides and dwelling on the relationship of the photographic and photoelectric sensitivity of silver halides. Their work contained reports of experiments with particular organic dyes leading them to the conclusion that “many types of dyes * * * act as optical sensitizers.”
While the sensitizing effect of organic dyes was thus well established prior to 1953, it remained for two Russian scientists, Putseiko and Terenin, to demonstrate the sensitizing effect of several organic dyes on zinc oxide in its semi-conductive form. One of their formally stated conclusions was “When a number of dyes were adsorbed on the powdered semi-conductors given above, in the photoelectric sensitivity spectrum there appeared additional maxima in the visible region. * * * ” An accurate if brief summary of their paper was published in the 1949 Chemical Abstract under its title, “Photosensitization of the internal photoeffect in zinc oxide and other semi-conductors by adsorbed dyes.”
In its semi-conductive form, however, a zinc oxide had little potential for electrophotography, sipce its ability to retain an electrostatic charge in darkness (its “dark resistivity”) was too low. Greig’s patent ’539 stipulated as prior art, filled this gap, since its zinc oxide as combined with a resin binder had sufficient dark resisitivity. If, therefore, a skilled chemist might not have thought the Russian experiments to have been useful in electrophotogra-phy because that work involved semiconductors, that reason was removed by Greig’s advances in the use of zinc oxide.
Moreover, one Sugarman, in 1953, a co-worker of Greig, testified that experimentation with dye sensitization would have been obvious in 1953 even without knowing of the Russian experiments. After briefly explaining the most accepted theory of the silver halide process within an ordinary camera, capsuled in n. 4, Sugarman stated:
“Then extrapolating from this theory and knowing that certain dyes in themselves are photoconductive, you would expect that certain dyes would sensitize any photoconductor just as they sensitize silver halide and of course the experiments and the publications of West and others pointed out that this was probably a true mechanism, so it would be a logical thing to try without knowing whether it would succeed or not, dye sensitization of zinc oxide.”
Finally, Nashua offered two experts, an Associate Professor of Chemistry at the University of Georgia and a Professor of Physics at Ohio State University. Both were familiar with the prior art to which we have alluded. Both testified that on the basis of this art — -the publications in the field of silver halide photography, the Russian article, and Greig’s patent '539 — the addition of dye sensitizers to increase the spectral response of Electrofax paper would have been obvious to a skilled chemist in 1953. The Ohio State expert, having demonstrated his knowledge of the field, apparently impressed the court and was subjected to only brief cross-examination devoted to eliciting that his own experiments had chiefly involved cadmium sulphide and not zinc oxide.
RCA, eschewing “a fruitless confrontation of experts” as imbued with “the medieval philosophy of compurgators and oathhelpers”, chose primarily to cast doubt on the neat picture of the prior art capsuled above. However, while important differences do exist between dye sensitization of silver halide and of white zinc oxide, they do not obscure the fact that exposing silver halides to light has the effect of exciting or liberating electrons — a phenomenon parallelled in the similar treatment of zinc oxides and suggestive of further parallels. Similarly, while the Russians’ discoveries with semi-conductive zinc oxide did not assure success, they did point to a possible solution of the problem posed by the patent ’539 coating. That Sugar-man testified only that there should be a parallel between silver halide photography and electrophotography simply confirms our statement above; RCA’s contention that Sugarman was simply “rationalizing what he had learned from the work of Greig” need not have been accepted by the district court. The Nashua experts on the basis of all their knowledge and experience and training, testified as to the state of the art in 1953. Their credentials, acquaintance with the field, and objectivity were subjected to the most competent cross-examination. Their credibility was not so impaired that the district court was required to ignore their testimony.
We conclude that the evidence presented to the district court supports the court’s conclusion that the prior art made dye sensitization of the patent ’539 coating obvious in 1953 to one with ordinary skill in the art. That others had tried unsuccessfully before Greig and that his invention was a commercial success do not require a different result. Nor does a brief series of unsuccessful experiments at the Batelle Memorial Institute with dye sensitization of electrophoto-graphic selenium plates persuade us that the court’s conclusion was erroneous. Batelle’s Final Report did suggest that the experience available in the silver halide field — where organic dye sensitizers had worked — “should be applicable for guiding the work on photoconduc-tors.” In short, the Batelle failures with selenium were not so clear a teaching of futility as to signal an end to the long road that had been traveled since 1873.
Moving to our second question— whether the selection of 29 specific dyes would have been obvious in 1953 to one trying to dye-sensitize the patent ’539 coating — we are confronted with RCA's contention that the district court never faced this question. While the district court did not isolate this as a separate issue, as we have chosen to do at RCA’s insistence on appeal (see n. 2), we are satisfied that the court understood the claimed uniqueness of the 29 dyes but dismissed that claim as unfounded. From the evidence presented to the district court, we are inclined to agree. Indeed, while we have dealt separately with the two inquiries set forth above in an effort to clarify the basic, issue presented by this appeal, we are satisfied that the two inquiries involve essentially the same “prior art” and should be viewed in pari materia.
Greig testified that May 27, 1953, was the first day that he tried to sensitize the patent ’539 coating with an organic dye. For two months he had been experimenting with the light sensitivity capacity of a specially prepared colored zinc oxide supplied by another company. Then, on May 27, without any preface other than the entry quoted in text supra posing the general question concerning the application of dye sensitizers to electrophotographic paper, he reported the first experiment which had been conducted that day. Attached to the entry were several prints showing that patent ’539 coating to which a small amount of an organic dye named “fluorescin’’ had been added made a markedly better copy of a one-fifth second exposure than did the coating without such dye. After this initial success, not deemed significant enough for inclusion in the monthly progress report filed by Greig’s superior, the record is silent for two and one-half months except for one entry in early June reporting the use of three dyes with no appreciable increase in sensitivity. Then on August 14 the notes report some successful tests using the dye ery-throsin. Experiments over the following months with 48 dyes ultimately resulted in identifying 29 dyes which made the ’539 coating photoconductive to ordinary light sources.
Greig concedés that in fact he was unfamiliar with the literature set forth above as comprising the prior art. His records indicate that he was immediately successful, even though his first choice of “fluorescin’’ was — by his own admission — “pure guess”. He testified that his background in dye chemistry enabled him to select the 48 experimental dyes, since that background made him aware of how some dyes would respond to the problems presented by dye-sensitizing the patent ’539 coating. However, there is no contention or evidence that his background was anything other than a competent familiarity with the existing art. Moreover, both Nashua experts testified that the selection of the 29 dyes set forth in patent ’540 would have been within the skill of the art in 1953.® Thus, it seems clear that the selection of the 48 experimental dyes involved little more than the application of the existing knowledge of dye characteristics.
We of course recognize that “[patent-ability shall not be negatived by the manner in which the invention was made.” 35 U.S.C. § 103 (1964); see Graham v. John Deere Co., supra,, 383 U.S. at 15-16, 86 S.Ct. at 684 and nn. 7-8. In our case, whether the 48 experimental dyes were selected by “a flash of genius”, or “pure guess”, or “long toil and experimentation”, the facts remain that the use of dye sensitizers was an obvious possibility for solving the single shortcoming of the patent ’539 coating, a competent familiarity with the characteristics of organic dyes would have led one skilled in the art to a limited number of possible dyes, and the process of adding organic dyes to the patent '539 coating was — by RCA’s own concession— obvious. Given these three facts, we agree with the district court’s implicit finding that the selection of the 29 organic dyes set forth in patent ’540 would have been obvious to one skilled in his art in 1953. While no two cases are precisely comparable, this case is of the genre, and falls within the principle, of Koppers, 396 F.2d at 372, where we said, “ * * * to grant a patent to the first person who finds the exact combination when experimenting within a known field could give too much force to the patent laws.”
Patent '540 being invalid for obviousness, Nashua contends that it is entitled to a refund of all royalties paid thereunder. However, its claim admittedly depends on a finding that RCA misrepresented material facts to the Patent Office in order to obtain patent '540. Such finding, we, like the district court, cannot make on this record.
Greig made two attempts to have his dye sensitizers patented prior to 1962; both applications were rejected, in part because of Thomsen patent 2,727,808. RCA then filed Greig’s affidavit under Rule 131 of the Patent Office Rules of Practice to the effect that the ’540 invention was conceived and tested prior to October 21, 1953, the filing date of the Thomsen patent. Soon thereafter, the Patent Office granted patent ’540 to Greig’s dye sensitization of the patent ’539 coating.
Nashua concedes that the ’540 invention was conceived prior to the filing of the Thomsen patent, so that Greig’s affidavit was a true statement and in full compliance with Rule 131. However, Nashua contends that the Thomsen application — which began with a brief description of Greig’s ’539 invention — was the only evidence before the Patent Office that the ’539 invention was known to someone outside the Patent Office and was therefore prior art for the ’540 invention. Thus, contends Nashua, when RCA overcame the Thomsen application with its Rule 131 affidavit, it purposely eliminated the only evidence that the ’539 invention was prior art for ’540 even though RCA has consistently conceded during trial that the ’539 invention was prior art for patent ’540.
RCA’s reply that the patent ’540 application described the ’539 invention is completely true but we think it misses the point; such description did not establish that the ’539 invention was prior art for the ’540 application. Thus, the practical — if not intended— effect of the affidavit may have been to remove the only indication that the '539 invention was in fact prior art.
Our problem — and Nashua’s — lies in the fact that the only evidence on this issue is the cryptic and technical file wrapper exchanges between the Examiner and the applicant. These exchanges are ambiguous as to precisely why the Examiner rejected the first two applications and what significance the Examiner attached to RCA’s amendment of its copending ’539 application and to RCA’s Rule 131 affidavit. Given these critical ambiguities, we cannot say that the district court was clearly erroneous in finding no fraud on RCA’s part. It is simply not sufficiently clear to us that RCA filed the affidavit realizing that its effect would be to materially misrepresent the prior art and deliberately intending such misrepresentation. Compare University of Illinois Foundation v. Blonder-Tongue Laboratories Inc., 422 F.2d 769, 776-777 (7th Cir. 1970).
We therefore uphold the district court’s finding that the filing of the Rule 131 affidavit did not constitute a fraud on the Patent office. Given that finding, Nashua properly concedes that its claim for a refund of royalties is without merit.
Affirmed.
. ROA has stipulated that patent ’539 is a part of the prior art for purposes of determining whether patent ’540 would have been obvious in 1953.
. At page 11 of its brief on appeal, after taking issue with the district court for allegedly misunderstanding the invention set forth in patent ’540, RCA states:
“The question to be resolved on this appeal is not the broad question of whether the concept of dye sensitization of Greig’s earlier ’539 Electrofax layer would have been obvious. The question to be resolved is whether or not Greig’s discovery of particular dyes which yielded new and specific Electrofax layers of superior quality and performance would have been obvious.” [Emphasis added.]
Two pages later, ROA insists that “ * * * the broad concept of dye sensitization was nothing more than Greig’s point of departure on the way to his ’540 invention.” [Emphasis added.]
On pages 26-27, the brief states:
“The ’540 invention was the discovery that a carefully and precisely selected number of organic dyes, when added in proper amounts to the Electrofax layer, would produce the needed supplemental spectral response * *
. Wall also listed more than 300 dyes which had the capacity to act as sensitizers of silver bromide. RCA dismisses this work, nearly three decades before Greig’s discovery, by pointing out discrepancies between Greig’s 29 dyes and Wall’s list. For example, in Wall’s list of some 300 sensitizers, Greig found five that would not sensitize his patent ’539 coating, and Wall’s list of non-sensitizers included two which Greig found would sensitize his coating. We note, however, that almost a third of the 48 dyes with which Greig experimented appeared on Wall’s list of sensitizers and that Greig’s list of 29 sensitizers included 8 listed by Wall as sensitizer's.
. The use of silver halides in conventional photography is the context of much of the literature in the prior art. A succinct description of the image-making process is given by the district court:
“In silver halide photography,- when light strikes the silver halide emulsion (i. e., the film), a chemical reaction ensues, which produces silver atoms in the areas struck by light. When the film or emulsion is immersed in a developer, these silver atoms are reduced to visible silver. In other words, after the film is exposed to light, there is a latent image of silver atoms which becomes visible when developed. In early silver halide photography, this chemical reaction was only produced by ultraviolet, violet and blue light. However, * * * H. W. Vogel found that the spectrum of light which causes this chemical reaction could be broadened by the use of organic dye sensitizers * * *.” 307 F.Supp. at 156.
. The former depends on a chemical reaction, the latter on an electrical phenomenon; the photoexcited electrons in the former stay within the silver halide crystal lattice, while those in the latter move through the entire layer; the latent image in the former is formed by a permanent, irreversible change and the layer is destroyed in development, while in the latter no irreversible change takes place during image formation and the layer is not destroyed; the former process does not require the retention of an electrostatic charge on the silver halide emulsion, the latter depends on such retention by the coated paper.
. The court stated, 307 F.Supp. at 157, that
“Regardless of the claims made, the 540 Patent is just a summary of the dye sensitization experiments that Mr. Greig went through and which produced the expected result."
RCA’s trial brief repeatedly made claims concerning the uniqueness of the 29 dyes, and we cannot assume that the court overlooked such claims. What is more likely from the evidence presented and from the court’s opinion as a whole is that the court believed that the only possible invention here was the concept of dye-sensitizing the patent ’539 coating, but that having found that concept obvious by 1953 art, the selection of the particular dyes was simply a matter of trial-and-error experimentation with a limited number of known dyes. As our text indicates, we agree. However, we do disapprove of such oblique treatment of important claims; the court should have spelled out its findings and rationale as to this issue with more care.
. The problems anticipated by Greig related to solubility, resistance to heat and to oxidization, and shelf life.
. When asked how one would determine which dyes would work, the expert from Ohio State replied, “By trial and error”. Elaborating, he testified that one could narrow the field of available dyes by considering the experience in silver halide photography and the experiments of Putseiko and Terenin.
. 37 C.F.R. § 1.131 provides, in relevant part:
“Affidavit of prior invention to overcome cited patent or publication.
(a) AA’hen any claim of an application is rejected on reference to a domestic patent which substantially shows or describes but does not claim the rejected invention, * * * and the applicant shall make oath to facts showing a completion of the invention in this country before the filing date of the application on which the domestic patent issued, * * * then the patent or publication cited shall not bar the grant of a patent to the applicant, 3: 3:
. Nashua’s appellate brief confuses the issue by intermittently claiming that Greig’s affidavit also concealed the fact that Greig in fact knew of Thomsen’s invention before he invented ’540. Were the Thomsen invention (as opposed to information disclosed in his application) relevant prior art for Greig’s ’540 invention, Nashua’s argument might have some merit. However, neither Nashua nor the district court — nor, for that matter, have we — relied on the Thomsen invention to show that Greig’s ’540 invention was obvious. Thus, there was no material misrepresentation in this regard.
. Since one’s copending application is not prior art for his later copending application — see, e. g., Application of Land, 54 C.C.Pa. 806, 368 F.2d 866, 874-877 (1966); compare Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 86 S.Ct. 335, 15 L.Ed.2d 304 (1965) — the later application’s description of the invention set forth in the earlier application does not establish the former invention as prior art, particularly since patent applications are completely confidential until a patent issues. 35 U.S.C. § 122 (1964).
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
GENERAL TELEVISION ARTS, INC., Defendant-Appellant, v. SOUTHERN RAILWAY COMPANY, Plaintiff-Appellee.
No. 83-7054.
United States Court of Appeals, Eleventh Circuit.
March 2, 1984.
Eugene D. Martenson, Birmingham, Ala., for defendant-appellant.
Larry B. Childs, Birmingham, Ala., for plaintiff-appellee.
Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
JOHNSON, Circuit Judge:
This is an appeal from a summary judgment issued by the United States District Court for the Northern District of Alabama. Because we find ourselves without jurisdiction, we dismiss the appeal.
The appellant, General Television Arts, Inc. (“GTA”), intended to produce a Wrangler Jeans advertisement for which it required an old-fashioned steam locomotive. GTA negotiated an agreement with Southern Railway Company (“Southern”) whereby GTA would rent a locomotive and crew for two days of filming at a cost of $6,000. The rental agreement was contained in a two-page letter from an assistant to the president of Southern, James Bistline, to Harold Ceasar of GTA. Among its provisions was the following:
It is understood and agreed that Southern shall not be held liable for or on account of any injury or death of employees of either company, or for or on account of any injury to the person or property of any other individual or individuals, company or companies, corporation or corporations whatsoever, which may be incurred or sustained by reason of or growing out of the subject matter of this letter agreement or otherwise, it being understood and agreed that all risk of loss, damage, injury and death shall be and is hereby assumed by [GTA] and said [GTA] shall and will protect, indemnify, defend and hold harmless Southern Railway from and against all claims for such loss, damage, injury or death... .
(emphasis supplied).
The first day of shooting was completed and the Southern crew returned the locomotive to the railyard. Upon entering the yard, the crew ran the locomotive into another engine, which was standing in the yard. Extensive damage to both engines and injury to two Southern employees resulted. It is assumed that the accident occurred while the locomotives were under the sole control of Southern and was entirely due to Southern’s negligence.
Southern filed this suit in the Northern District of Alabama seeking indemnity from GTA. Jurisdiction was based on diversity. 28 U.S.C.A. § 1332. Southern sought a declaration requiring GTA to indemnify it for damages suffered in the action as well as monetary damages to cover payments that Southern had made to settle third party claims. GTA filed a motion for summary judgment along with an affidavit of Harold Ceasar, which outlined the facts surrounding the accident and the execution of the contract as well as his understanding of the intent and scope of the contract.
On November 9, 1982, the district court entered a partial summary judgment in favor of Southern on the question of liability under the indemnity clause of the agreement and struck the affidavit of Mr. Cea-sar. Next day, the court entered an order to that effect, which further ordered “that this cause proceed to trial on the issue of damages.” On November 22, 1982, GTA moved the court to make the partial summary judgment a “Final Summary Judgment pursuant to Rule 54(b) F.R.C.P.” so that GTA could perfect an immediate appeal to this Court. On December 23, 1982, the district court entered an order denying GTA’s request for entry of a Rule 54(b) final judgment, concluding that under the terms of that rule it could not designate a partial summary judgment on the issue of liability “final”. Instead, the court certified its November 10 order for an interlocutory appeal pursuant to 28 U.S.C.A. § 1292(b).
On January 19,1983, GTA filed a “Notice of Appeal” in the district court, which purported to appeal “from the Final Judgment and Order entered on December 23, 1982, and the previous non-final Order of November 9, 1982, entered by [the district judge] which was made final in the Order of December 23,1982.” On January 26, 1983, the district court granted Southern’s motion for a partial summary judgment on the issue of damages and entered an award of some of the damages Southern had claimed. This order contained a Rule 54(b) certificate of finality. GTA filed no notice of appeal from the January 26 final judgment.
This Court lacks jurisdiction to entertain this appeal. Section 1292(b) of 28 U.S.C.A. requires a party wishing to appeal an interlocutory order certified under that section to apply to the Court of Appeals for permission to appeal within ten days of the entry of the district court’s certification. This requirement is a jurisdictional prerequisite, Cole v. Tuttle, 540 F.2d 206, 207 n. 2 (5th Cir.1976), which we must strictly construe. Alabama Labor Council v. Alabama, 453 F.2d 922, 924 (5th Cir.1972). Because GTA failed to apply for leave to appeal within ten days of the district court’s Section 1292(b) certification (it filed instead its so-called “notice of appeal” twenty-seven days after the filing of the district court’s December 23 order), this Court does not have jurisdiction over the appeal under that section.
Although GTA concedes its error, it claims that this Court can exercise jurisdiction under 28 U.S.C.A. § 1291 and that GTA should be able to proceed with its appeal based on a “liberal” reading of Fed.R.App.P. 4(a)(2). The purpose of that rule is to avoid the harsh result that may obtain when a district court has announced its final judgment and zealous counsel in his haste to file a notice of appeal does so before the district court formally enters the order containing its judgment. The rule was not intended to validate anticipatory notices of appeal filed prior to the announcement of a final judgment. Hence this Court and its predecessor continued to hold after the enactment of Rule 4(a)(2) in 1979 that a final judgment does not “retroactively validate the premature notice of appeal.” United States v. Taylor, 632 F.2d 530, 531 (5th Cir. Unit A 1980); see also McLaughlin v. City of LaGrange, 662 F.2d 1385, 1387 (11th Cir.1981), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982). Consequently, Rule 4(a)(2) does not confer jurisdiction upon a Court of Appeals unless the appellant has filed a notice of appeal after the announcement of judgment but before the entry of the order.
There was no announcement of the final judgment prior to GTA’s filing of the notice of appeal. GTA urges us to consider the district court’s December 23 certification for interlocutory appeal as such an announcement, but it clearly was not. A partial summary judgment is not a “final” judgment subject to appeal under 28 U.S.C.A. § 1291 unless the district court has certified it as final under Rule 54(b). Winfield v. St. Joe Paper Co., 663 F.2d 1031, 1032 (11th Cir.1981). Here the district court expressly refused to do so. Moreover, a partial summary judgment on the issue of liability is not the type of partial summary judgment that can ever be considered “final” within the meaning of 28 U.S.C.A. § 1291. Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 1206, 47 L.Ed.2d 435 (1976); Fed.R.Civ.P. 56(c) (“A summary judgment, interlocutory in character, may be rendered on the issue of liability alone”). Consequently, the district court’s certification for interlocutory appeal of its partial summary judgment on liability cannot be considered an announcement of final judgment. Because this Court is without jurisdiction, the APPEAL IS DISMISSED.
. Fed.R.Civ.P. 54(b) states in pertinent part: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
. 28 U.S.C.A. § 1292(b) states in pertinent part:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order
The district court did not name this section, but its order stated that “this order involves a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from this order may advance the ultimate termination of this litigation.”
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit has adopted the case law of the former Fifth Circuit handed down as of September 30, 1981, which is binding unless and until overruled or modified by this Court en banc.
. Fed.R.App.P. 4(a)(2) provides:
Except as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof.
. GTA evidently believed that the December 23 order was a final order under Rule 54(b), and it filed a notice of appeal as if a final judgment had been rendered. Its error may have been because the district court, even after immediately explaining correctly that a partial summary judgment on liability could not be made “final” under Rule 54(b), “ORDERED, ADJUDGED and DECREED that FINAL JUDGMENT be and it hereby is ENTERED on the finding of liability.” Although careful reading of the order would have revealed that the district court was certifying its partial summary judgment for interlocutory appeal rather than entering a final judgment, the court’s reference to its order as “FINAL JUDGMENT” was clearly an error. Unfortunately for the appellant, the district court’s mistake does not help him because a district court mislabeling a non-final judgment “final” does not make it so. See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976).
. GTA’s appeal was based on the contention that under Alabama law the language of the indemnity agreement was not sufficiently specific to require GTA to indemnify Southern for the results of Southern’s own negligence. Although our disposition of the appeal does not require us to reach it, we note that this claim is without merit. In several recent cases the Alabama Supreme Court has held that the type of “all risk of loss” language employed in Southern’s indemnity clause is sufficiently broad to encompass liability resulting from the indemnitee’s negligence. Eastwood Lands, Inc. v. U.S. Steel Corp., 417 So.2d 164, 168 (Ala. 1982); Mitchell v. Moore, 406 So.2d 347, 353-54 (Ala.1981). Indeed, the Alabama Supreme Court has cited the district court’s opinion in this case with approval as a “summary of the degree of specificity required.” Brown Mechanical Contractors v. Centennial Insurance Co., 431 So.2d 932, 945 n. 8 (Ala. 1983).
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
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sc_authoritydecision
|
E
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
IMMIGRATION AND NATURALIZATION SERVICE v. JONG HA WANG et ux.
No. 80-485.
Decided March 2, 1981
Per Curiam.
Section 244 of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended, 8 U. S. C. § 1254 (a)(1), provides that the Attorney General in his discretion may suspend deportation and adjust the status of an otherwise deportable alien who (1) has been physically present in the United States for not less than seven years; (2) is a person of good moral character; and (3) is “a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” The Attorney General is authorized to delegate his powers under the Act, 8 U. S. C. § 1103, and his authority under § 244 has been delegated by regulation to specified authorities in the Immigration and Naturalization Service. 8 CFR §2.1 (1979).
The § 244 issue usually arises in an alien’s deportation hearing. It can arise, however, as it did in this case, on a motion to reopen after deportation has been duly ordered. The Act itself does not expressly provide for a motion to reopen, but regulations promulgated under the Act allow such a procedure. The regulations also provide that the motion to reopen shall “state the new fact to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material.” 8 CFR § 3.8 (a) (1979). Motions to reopen are thus permitted in those cases in which the events or circumstances occurring after the order of deportation would satisfy the extreme-hardship standard of § 244. Such motions will not be granted “when a prima facie case of eligibility for the relief sought has not been established.” Matter of Lam, 141. & N. Dec. 98 (BIA 1972). See Matter of Sipus, 14 I. & N. Dec. 229 (BIA 1972).
Respondents, husband and wife, are natives and citizens of Korea who first entered the United States in January 1970 as nonimmigrant treaty traders. They were authorized to remain until January 10, 1972, but they remained beyond that date without permission and were found deportable after a hearing in November 1974. They were granted the privilege of voluntarily departing by February 1, 1975. They did not do so. Instead, they applied for adjustment of status under § 245 of the Act, 8 U. S. C. § 1255, but were found ineligible for this relief after a hearing on July 15, 1975. Their appeal from this ruling was dismissed by the Board of Immigration Appeals in October 1977. Respondents then filed a second motion to reopen their deportation proceedings in December 1977, this time claiming suspension under § 244 of the Act. Respondents by then had satisfied the 7-year-continuous-physical-presence requirement of that section. The motion alleged that deportation would result in extreme hardship to respondents’ two American-born children because neither child spoke Korean and would thus lose “educational opportunities” if forced to leave this country. Respondents also claimed economic hardship to themselves and their children resulting from the forced liquidation of their assets at a possible loss. None of the allegations was sworn or otherwise supported by evidentiary materials, but it appeared that all of respondents’ close relatives, aside from their children, resided in Korea and that respondents had purchased a dry-cleaning business in August 1977, some three years after they had been found deportable. The business was valued at $75,000 and provided an income of $650 per week. Respondents also owned a home purchased in 1974 and valued at $60,000. They had $24,000 in a savings account and some $20,000 in miscellaneous assets. Liabilities were approximately $81,000.
The Board of Immigration Appeals denied respondents’ motion to reopen without a hearing, concluding that they had failed to demonstrate a prima facie case that deportation would result in extreme hardship to either themselves or their children so as to entitle them to discretionary relief under the Act. The Board noted that a mere showing of economic detriment is not sufficient to establish extreme hardship under the Act. See Pelaez v. INS, 513 F. 2d 303 (CA5), cert. denied, 423 U. S. 892 (1975). This was particularly true since respondents had “significant financial resources and there [was] nothing to suggest that the college-educated male respondent could not find suitable employment in Korea.” With respect to the claims involving the children, the Board ruled that the alleged loss of educational opportunities to the young children of relatively affluent, educated Korean parents did not constitute extreme* hardship within the meaning of § 244.
The Court of Appeals for the Ninth Circuit, sitting en banc, reversed. 622 F. 2d 1341 (1980). Contrary to the Board’s holding, the Court of Appeals found that respondents had alleged a sufficient prima facie case of extreme hardship to entitle them to a hearing. The court reasoned that the statute should be liberally construed to effectuate its ameliorative purpose. The combined effect of the allegation of harm to the minor children, which the court thought was hard to discern without a hearing, and the impact on respondents’ economic interests was sufficient to constitute a prima facie case requiring a hearing where the Board would “consider the total potential effect of deportation on the alien and his family.” Id., at 1349.
The Court of Appeals erred in two respects. First, the court ignored the regulation which requires the alien seeking suspension to allege and support by affidavit or other eviden-tiary material the particular facts claimed to constitute extreme hardship. Here, the allegations of hardship were in the main conclusory and unsupported by affidavit. By requiring a hearing on such a motion, the Court of Appeals circumvented this aspect of the regulation, which was obviously designed to permit the Board to select for hearing only those motions reliably indicating the specific recent events that would render deportation a matter of extreme hardship for the alien or his children.
Secondly, and more fundamentally, the Court of Appeals improvidently encroached on the authority which the Act confers on the Attorney General and his delegates. The crucial question in this case is what constitutes “extreme hardship.” These words are not self-explanatory, and reasonable men could easily differ as to their construction. But the Act commits their definition in the first instance to the Attorney General and his delegates, and their construction and application of this standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute. Here, the Board considered the facts alleged and found that neither respondents nor their children would suffer extreme hardship. The Board considered it well settled that a mere showing of economic detriment was insufficient to satisfy the requirements of § 244 and in any event noted that respondents had significant financial resources while finding nothing to suggest that Mr. Wang could not find suitable employment in Korea. It also followed that respondents’ two children would not suffer serious economic deprivation if they returned to Korea. Finally, the Board could not believe that the two “young children of affluent, educated parents” would be subject to such educational deprivations in Korea as to amount to extreme hardship. In making these determinations, the Board was acting within its authority. As we see it, nothing in the allegations indicated that this is a particularly unusual case requiring the Board to reopen the deportation proceedings.
The Court of Appeals nevertheless ruled that the hardship requirement of § 244 is satisfied if an alien produces sufficient evidence to suggest that the “hardship from deportation would be different and more severe than that suffered by the ordinary alien who is deported.” 622 F. 2d, at 1346. Also, as Judge Goodwin observed in dissent, the majority of the Court of Appeals also strongly indicated that respondents should prevail under such an understanding of the statute. Id., at 1352. In taking this course, the Court of Appeals extended its “writ beyond its proper scope and deprived the Attorney General of a substantial portion of the discretion which § 244 (a) vests in him.” Id., at 1351 (Sneed, J., dissenting).
The Attorney General and his delegates have the authority to construe “extreme hardship” narrowly should they deem it wise to do so. Such a narrow interpretation is consistent with the “extreme hardship” language, which itself indicates the exceptional nature of the suspension remedy. Moreover, the Government has a legitimate interest in creating official procedures for handling motions to reopen deportation proceedings so as readily to identify those cases raising new arid meritorious considerations. Under the standard applied by the court below, many aliens could obtain a hearing based upon quite minimal showings. As stated in dissent below, “by using the majority opinion as a blueprint, any foreign visitor who has fertility, money, and the ability to stay out of trouble with the police for seven years can change his status from that of tourist or student to that of permanent resident without the inconvenience of immigration quotas. This strategy is not fair to those waiting for a quota.” Id., at 1352 (Goodwin, J., dissenting). Judge Goodwin further observed that the relaxed standard of the majority opinion “is likely to shift the administration of hardship deportation cases from the Immigration and Naturalization Service to this court.” Id., at 1351.
We are convinced that the Board did not exceed its authority and that the Court of Appeals erred in ordering that the case be reopened. Accordingly, the petition for certio-rari is granted, and the judgment of the Court of Appeals is reversed.
So ordered.
Justices Brennan, Marshall, and Blackmun would grant the petition for certiorari and give the case plenary consideration.
Initially, the Attorney General had no discretion in ordering deportation, and an alien’s sole remedy was to obtain a private bill from Congress. See Foti v. INS, 375 U. S. 217, 222 (1963). The first measure of statutory relief was included in the Alien Registration Act of 1940, 54 Stat. 670. Under the statutory predecessor of §244, suspension of a deportation order could be granted only if the alien demonstrated “exceptional and extremely unusual hardship.” Immigration and Nationality Act of 1952, §244 (a)(1), Pub. L. 414, 66 Stat. 214. This provision was amended to require that the alien show that deportation would result in “extreme hardship,” Act of Oct. 24, 1962, Pub. L. 87-885, § 4, 76 Stat. 1248.
Section 2.1 of the regulations delegates the Attorney General’s power to the Commissioner of Immigration and Naturalization, and permits the Commissioner to redelegate the authority through appropriate regulations. The power to consider § 244 applications in deportation hearings is delegated to special inquiry officers, whose decisions are subject to review by the Board of Immigration Appeals, 8 CFR §§242.8, 242.21 (1979). See Bastidas v. INS, 609 F. 2d 101, 103, n. 1 (CA3 1979). The Board of Immigration Appeals has the power to consider the question if it is raised on a motion to reopen where the Board has already made a decision in the case. 8 CFR §3.2 (1979).
Title 8 CFR §3.2 (1979) provides in pertinent part:
“Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted . . . unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing.”
Relief was denied because the immigration judge determined that visa numbers for nonpreference Korean immigrants were not available, thus rendering respondents ineligible for the requested relief. The immigration judge also stated that he would have denied the application given respondents’ failure to move to Salt Labe City where Mr. Wang’s sponsoring employer was located, thus causing doubt whether his services were in fact needed.
Other Courts of Appeals have enforced the evidentiary requirement stated in 8 CFR § 3.8 (1979). See, e. g., Oum v. INS, 613 F. 2d 51, 54 (CA4 1980); Acevedo v. INS, 538 F. 2d 918, 920 (CA2 1976). See also Tupacyupanqui-Marin v. INS, 447 F. 2d 603, 607 (CA7 1971); Luna-Benalcazar v. INS, 414 F. 2d 254, 256 (CA6 1969).
Prior to the present procedures, the grant or denial of a motion to reopen was solely within the discretion of the Board. See Arabas v. Zimmerman, 200 F. 2d 322, 323-324, and n. 2 (CA3 1952). The present regulation is framed negatively; it directs the Board not to reopen unless certain showings are made. It does not affirmatively require the Board to reopen the proceedings under any particular condition. Thus, the regulations may be construed to provide the Board with discretion in determining under what circumstances proceedings should be reopened. See Villena v. INS, 622 F. 2d 1352 (CA9 1980) (en banc) (Wallace, J., dissenting). In his dissent, Judge Wallace stated that INS had discretion beyond requiring proof of a prima facie case:
“If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations.” Id., at 1362.
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_3_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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 PUBLIC HOUSING AUTHORITY et al. v. MOBILE HOUSING BOARD et al.
No. 11810.
Circuit Court of Appeals, Fifth Circuit.
Nov. 7, 1947.
Joseph Burstein, Atty., Public Housing Adm., of Washington, D. C., and Percy G Fountain, Asst. U. S. Atty., of Mobile, Ala., for appellants.
Alexander Foreman, Jr., of Mobile, Ala., for appellees.
Before McCORD, WALLER, and LEE, Circuit Judges.
WALLER, Circuit Judge.
By the complaint and bill of particulars it was shown that appellant, Federal Public Housing Authority [hereinafter sometimes referred to as “Federal”], had made a loan to the Mobile Housing Board [hereinafter sometimes referred to as “Mobile”], of in excess of $1,500,000 to aid in construction of low-rent housing projects and as security for said loan had taken the bonds issued by the Board of Directors of the Mobile unit. In the contract Federal was obligated to pay to Mobile an annual contribution of 3%% of the development costs of the units. All net earnings of Mobile Housing Project were required to be used for the payment of principal and interest on the bonds, and any excess of earnings over operation costs and debt service would go in reduction of the contribution which Federal had agreed to make annually.
Appellant alleged that the defendants willfully, wrongfully, and arbitrarily violated the provisions of the contract in purchasing insurance at a cost greater than the lowest available rate in financially sound and responsible companies and thereby had increased the cost of operation of the housing project and that this had adversely deprived appellant of the advantage of having the sum represented by said excess insurance costs applied to the reduction of Federal’s annual contribution.
Appellee had theretofore secured its insurance from fixed-premium stock companies. Appellant insisted in its complaint that insurance could be obtained in certain mutual companies which were financially sound and responsible, at a considerable annual saving by reason of the fact that those mutual insurance companies regularly return a dividend to the policyholder and without ever having exercised the reserved right and privilege of said mutual companies to require an assessment against the policyholder when necessary to pay losses.
Appellant exhibited a binder from Firemen’s Mutual Insurance Company covering the insurance in question, and it alleged that the insurance could be purchased from said Firemen’s Mutual Insurance Company for a deposit premium of 330 per hundred dollars for a three-year policy, and that said company had for many years past re-returned to the policyholder a dividend of at least 70% of the deposit premium, but it further alleges that assessments could be made by said company equal to five times the annual deposit premium. Although the appellant obtained a binder from the Firemen’s Mutual Insurance Company, which is a company that may make assessments equal to five times its annual deposit premium, it nevertheless gave the names of five mutual companies, which it states were non-assessable companies, from which it asserted the insurance could be purchased for 300 per hundred dollars. Appellant tendered no binder from those companies.
After it learned, subsequent to the bringing of the suit, that Federal proposed to procure insurance on a three-year, instead of a one-year basis, appellee secured insurance on a three-year basis at the rate of 300 per hundred from stock companies without the provision for either assessments or dividends. The initial rate for which appellant secured a binder from Firemen’s Mutual Insurance Company was 330 per hundred and was in excess of the rate of 300 per hundred for the three-year policies issued by the stock companies. Appellant asserts that the history of the mutual companies from which it proposed to secure the insurance revealed a regularity of annual dividends and a total absence of assessments, and, therefore, it argues that the mutual insurance which it sought to have issued was lower than the rate of stock companies by virtue of the dividend provisions in the mutual policies, even though the tendered policy obligated the policyholders to pay an assessment of not to exceed five times the initial premium deposit in the event same became necessary to meet losses.
Thus the complaint sought to convert the age-old economic controversy as to the advantage or disadvantage of mutual fire insurance over fixed-premium stock company insurance into a judicial controversy.
From time immemorial business men and economists have differed on this question. Neither Congress nor the legislatures of the states have settled the issue, and the type of fire insurance that a business man selects has long been considered a matter of economic choice.
It cannot be gainsaid that if the rate charged by the stock companies and the mutuals were each 30^ per hundred, and if the premium charged by the mutual were actually reduced by an excess of premiums collected over cost, then the cost of mutual insurance would be less than the cost of stock company insurance. The test set out in the contract between Federal and Mobile is not the ultimate cost of the insurance, but the test is the rate. If the rates here were the same, the ultimate cost of the insurance to the policyholder would be less to the holder of the mutual policy, provided there is a dividend paid and provided there are no assessments. Notwithstanding the history of the mutual company that executed the binder in regularly paying dividends and in not making assessments, nevertheless both are contingent. Either may or may not happen. The fact that a company has regularly paid dividends and has never called upon its policyholders for an assessment does not prove that a great catastrophe, such as a hurricane that devastates great areas or a fire that destroys a great city, could not occur and thereby prevent the paying of dividends or demand the collection of assessments. Whether these things will happen cannot be settled by-court decree. Whether it is a part of economic wisdom for the policyholder to acquire insurance at a fixed sum with no further liability to him, or whether he should take out insurance with the possibility of reduced cost but with the attendant possibility of being called upon to assist in paying the loss of others, is an economic issue that involves business discretion. It is not a judicial question in the absence of a definite and positive agreement to take out one type of insurance as distinguished from some other kind.
The Mobile Housing Board is a public body organized under the law of Alabama, having a Board of Directors clothed with the power to exercise its discretion in the management of the business of the housing unit, and as such it did not contract away to the Federal Public Housing Authority its discretion to settle the economic question presented in this case. In the absence of an abuse of that discretion the federal courts cannot, and should not, interfere. Van Antwerp et al. v. Board of Commissioners, City of Mobile, 217 Ala. 201, 115 So. 239; Pilcher v. City of Dothan, 207 Ala. 421, 93 So. 16; Henderson v. City of Enterprise, 202 Ala. 277, 80 So. 115. The jurisdiction of the federal courts is limited to judicial cases and controversies. Whether, for instance, the mutual insurance companies involved in this case actually carried large risks in the areas of Florida, Alabama, Mississippi, and’Louisiana, where the recent great hurricane destroyed insured property of the value of many millions of dollars, such as might necessitate calling upon the policyholders to respond to assessments would not now be an appropriate question. But whether or not the consideration of such a possibility might be such as would influence a reasonable person in procuring insurance of a particular type is a question that calls for an answer over which the minds of reasonable men might differ, and the possession of the correct answer to which is not an exclusive attribute of-judicial wisdom. The amount, type, and spread of the risks of insurance companies, mutual or otherwise, as well as the reputation and character of service rendered by the companies, their agents, engineers, adjusters, etc., are economic factors that address themselves to sound business discretion. The power to prophesy as to the time and extent of catastrophes might have been an attribute of the judges of ancient Israel, but that attribute does not adhere in judges of the federal cqurts of the present day.
The plaintiff alleges that: “The purchase of the insurance risks hereinbefore referred to, in violation of said contract, at a higher rate than available from financially sound and responsible insurance companies, will directly affect such excess earnings and require a greater amount of annual contribution from the plaintiff.”
Moreover, the complaint fails to allege either: (a) that the Mobile Housing Board is insolvent and could not be made to respond to any judgment recoverable by virtue of such an alleged breach of its contract ; (b) that the defendant had defaulted in the payment of the principle or interest on its bonds; (c) that its cost of operation had exceeded its earnings, and that in consequence appellant had been compelled to make expenditures; (d) that the alleged savings on insurance would have been sufficient to prevent appellant from annually making the contribution of 3%% according to its contract. It, therefore, seems that its allegation of immediate and irreparable injury is a mere legal conclusion. But be that as it may, we believe that the judgment of the lower Court was correct for the reason that the Board of Directors of the Mobile Housing Board had a discretion in the matter which is not shown to have been abused, and the exercise of which was unattended by fraud, without which there existed no justiciable issue.
The judgment of the Court below is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_genapel1
|
G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Linda (Sinklear) LESSMAN, Plaintiff-Appellant, v. Bill McCORMICK, Fred Howard, Ed Ritchie, Ed White, John Finden, James Foster, John Hopkins, Elmer Beck, Dr. John Davis, Jr., Robert Drumm, Ralph Glenn, Joan Guy, B. M. Kane, William Kobach, J. R. Kreiger, Kenneth Payne, Jr., Robert Petro, Darrell Roach, Richard Roach, G. W. Snyder, Jr., Russ Reynolds, and Topeka Bank & Trust Company, Defendants-Appellees.
Nos. 77-1951 and 77-2045.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted Nov. 14, 1978.
Decided Jan. 26, 1979.
Fred W. Phelps, Jr. of Fred W. Phelps, Chartered, Topeka, Kan., for plaintiff-appellant.
Leonard M. Robinson, Topeka, Kan., for defendant-appellee Bill McCormick.
Wilburn Dillon, Jr., Topeka, Kan. (Tom L. Green, Topeka, Kan., with him on brief), for defendants-appellees Fred Howard, Ed Ritchie and Ed White.
L. M. Cornish, Jr., Topeka, Kan. (Henry J. Schulteis, Topeka, Kan., with him on brief), of Glenn, Cornish & Leuenberger, Chartered, Topeka, Kan., for defendants-appellees John Finden, James Foster, John Hopkins, Elmer Beck, Dr. John Davis, Jr., Robert Drumm, Ralph Glenn, Joan Guy, B. M. Kane, William Kobach, J. R. Kreiger, Kenneth Payne, Jr., Robert Petro, Darrell Roach, Richard Roach, G. W. Snyder, Jr., Russ Reynolds, and Topeka Bank & Trust Co.
Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
These appeals arise out of a Civil Rights Act complaint filed by Linda (Sinklear) Lessman against the Topeka Bank & Trust Company and individual defendant appellees who include the Mayor of the City of Topeka, a Topeka policeman Ed White and his supervisors, including the Chief of Police, Russ Reynolds, an employee of the bank, and all of the members of the board of directors of Topeka Bank & Trust Company. Jurisdiction is asserted under 42 U.S.C. §§ 1983, 1985(2), (3), 1986 and 28 U.S.C. § 1343(3). The trial court dismissed the complaint upon motion of the defendants. Ms. Lessman has appealed.
One question on appeal is whether the complaint states a cause of action under 42 U.S.C. § 1983, specifically whether the actions recited, if true, show a deprivation of a right protected by the Constitution and the laws of the United States within the meaning of that section. Also at issue is whether the complaint is sufficient to state a cause of action under 42 U.S.C. §§ 1985(2) or (3) or 1986, specifically whether she has brought herself within a protected class.
The complaint alleged a conspiracy among all defendants to deny plaintiff equal protection of the law and to injure her property and person. It asserted that the defendants arranged to have White, a city police officer, arrest plaintiff upon a warrant and complaint alleging that she had failed to pay an overtime parking ticket. It was further alleged that White arrested and imprisoned the plaintiff, took her to the police station, where she paid the fine for overtime parking (which she admitted she owed); that having paid the fine plaintiff’s imprisonment was continued by informing her that she must see the defendant Reynolds, the bank employee; that White ordered plaintiff to wait in a room until Reynolds appeared, who told plaintiff that when she failed to respond to his letters to her as a debtor of the bank he had prevailed upon the city’s police power to arrest and imprison her.
The reasons for the conspiracy were stated to be to instill in plaintiff a fear of the awesome powers of “those who effect arrests and imprisonments” by subjecting her to humiliation, embarrassment and the like, and to instill in her a fear of those who have the power to cause others to effect arrests and imprisonment. The reason for the wish to instill such fear was declared to be to force the plaintiff to give the bank a preferred position in relation to plaintiff’s other creditors who did not have access to such compelling means of exacting payments.
No specific facts were alleged with respect to any defendants other than White and Reynolds, except that they “arranged to have the defendant, White, arrest plaintiff,” and that they conspired to deprive plaintiff of her rights.
Ruling upon motions by the defendants to dismiss, the trial court declared that there was a bare conclusory allegation of conspiracy, with no specification, insufficient to withstand a motion to dismiss as to the Section 1985 claim. It said that any cause under the portion of § 1985(2) following the semicolon, and § 1985(3) requires a colorable claim of class-based discriminatory animus which is not pleaded here, “nor does it appear they can fairly be so pleaded given the facts which underlie this suit.” Since a cause under § 1986 depends upon statement of valid cause of action under § 1985, that claim also was ruled out.
With respect to the § 1983 claim it found the conclusory statements insufficient to state a cause against any other than defendants White and Reynolds. As to them, there was sufficient state action or action under color of state law, but characterizing the claim as essentially one for false arrest or imprisonment the judge thought the incidents alleged were not of sufficient importance to support federal jurisdiction. Therefore, the complaint was dismissed as to all defendants.
Upon review we must bear in mind first that this was not a ruling upon a motion for summary judgment, but one where a complaint was dismissed for failure to state cause of action. The allegations of the complaint must be taken at face value and construed most favorably to the pleader. A motion to dismiss must not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
Thus we must carefully analyze the complaint against the backdrop of each of the sections under which jurisdiction was invoked, to see if it can pass the required tests under the liberal construction rules we are bound to apply.
I
We consider first the allegations of claims under 42 U.S.C. §§ 1985(2), 1985(3) and 1986. Appellant’s brief concedes that only the portion of § 1985(2) following the semicolon is invoked here. With respect to this and § 1985(3) she acknowledges that there must be class-based discriminatory animus. She alleges it is present because she is a member of a class consisting of all debtors, and that the discrimination was to give one creditor an unfair and unjust advantage over her as a debtor.
Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), discussing § 1985(3), stated:
The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by law to all. (Footnotes omitted.)
The Supreme Court expressly declined to decide whether a conspiracy motivated other than by racial bias would be actionable under that section. 403 U.S. at 102 n.9, 91 S.Ct. 1790. This circuit has held the same kind of class-based discriminatory animus is required under that portion of § 1985(2) following the semicolon. Smith v. Yellow Freight System, Inc., 536 F.2d 1320 (10th Cir. 1976). We have also ruled that where there is no valid claim under § 1985 none can exist under § 1986. Taylor v. Nichols, 558 F.2d 561, 568 (10th Cir. 1977).
The circuit court cases which have recognized under § 1985, classes which are not racially based, have stayed close to the areas protected by the First Amendment. E. g., Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (Indians with a particular political view); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (members of Jewish faith); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (supporters of a political candidate); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971) (employees with a certain political view).
Debtors have not been recognized as a protected class as yet. Bankrupts have been expressly held not to be such a class in an en banc decision of the Fifth Circuit. McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (1977).
Surely if we should recognize debtors as a protected class it would be the largest in America. We do not have to make that decision, however, because the plaintiff is not complaining about a conspiracy against all debtors, only those debtors who owe the Topeka Bank & Trust Company, who have defaulted on their loans, have not responded to ordinary means of pressure, and have committed some violation of law which gives the alleged coconspirator police officers an excuse to arrest them. That surely does not describe a discriminatory animus against all debtors, against a type or class of debtors, or anyone other than this particular individual. The instant case is not essentially different from Ward v. St. Anthony Hosp., 476 F.2d 671 (10th Cir. 1973) where we held a physician denied staff privileges at a hospital had not shown himself the object of a class-based invidiously discriminatory animus. The complaint must allege facts showing a conspiracy against plaintiff “because of” her membership in a class, and that the criteria defining the class “were invidious.” Harrison v. Brooks, 519 F.2d 1358, 1360 (1st Cir. 1975).
The complaint was properly dismissed as to the 42 U.S.C. §§ 1985(2), (3) and 1986 claims.
II
We turn to the sufficiency of the allegations of the complaint to state a claim under 42 U.S.C. § 1983. Two elements are necessary for recovery under that section.
First, the plaintiff must prove that the defendant has deprived him of a right secured by the “Constitution and laws” of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” This second element requires that the plaintiff show the defendant acted “under color of law.”
Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970) . The allegations are sufficient, at least as to policeman White and the bank employee Reynolds, to find action under color of state law. The thrust of § 1983 is to protect against the misuse of power by officials such as the police here. Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Private individuals and entities are subject to liability under the section. See Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In fact the trial court found there was action under color of state law. The dispute, however, is over whether defendant was deprived of a right secured by the Constitution and laws of the United States within the meaning of § 1983.
While plaintiff claims the defendants intended to injure her in her property and in her person, and to force her to prefer the bank over her other creditors, there is no allegation that she was unlawfully deprived of her money or property. She paid a fine on the parking ticket for which she was arrested; but admits it was owed. There is no statement in the complaint that she did in fact prefer the bank over her other creditors because of this action. The complaint does allege that she was arrested and taken to the police station, and after paying her fine she was not released until she talked to the bank officer. Thus her complaint states a claim for false arrest and false imprisonment under color of state law. We are required to consider whether that claim is within the protection of § 1983.
Certainly the concept of “liberty” guaranteed by the Fourteenth Amendment denotes freedom from bodily restraint. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Perhaps, however, not all unlawful deprivations of liberty were intended to be protected under § 1983. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), involving defamation, whereby local police publicly identified the plaintiff as a shoplifter, it was held this cause was not within the scope of § 1983. The court noted that the Civil Rights Act was not intended to create a body of general federal tort law, and “the procedural guarantees of the Due Process Clause cannot be the source for such law.” 424 U.S. at 701, 96 S.Ct. at 1160.
Nevertheless, in numerous instances the courts have held that false arrest and false imprisonment give rise to claims under § 1983. In most of these cases there were aggravated circumstances such as assaults, harassment or unlawful searches. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), for example, there was an unlawful arrest, harassment, illegal search and holding of the plaintiff for about 10 hours.
There have been a number of cases in the Tenth Circuit. Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963) involved an illegal arrest, excessive force, seizure of property, denial of bail and a compelled guilty plea. In Marland v. Heyse, 315 F.2d 312 (10th Cir. 1963), plaintiff was arrested on three separate occasions, held at the police headquarters for five hours on the first, two hours on the second and overnight the third time. The court held that a jury question was presented as to whether the conduct of the police officers “on the different occasions” was so arbitrary, unreasonable and without probable cause as to subject plaintiff to a deprivation of rights under the Constitution. In Martin v. Duffie, 463 F.2d 464 (10th Cir. 1972), a complaint was held to state a cause of action against police officers where there was arrest without a warrant and the police department did not show probable cause. But in that case while being questioned, plaintiff was struck on the head with such severity that he suffered a brain injury which required immediate surgery. Also the arresting officers had made three separate visits to plaintiff’s home to search (apparently with plaintiff’s consent), none of which were productive.
There are, however, cases which apparently involved no violence, unlawful searches or repeated harassment. We found a cause was stated under § 1983 when state officials were alleged to have abused their extradition power by turning over the plaintiff to another state without affording him the hearing required by state statutes. Sanders v. Conine, 506 F.2d 530 (10th Cir. 1974). Also while a defendant’s verdict was upheld, the court in Van Camp v. Gray, 440 F.2d 777 (10th Cir. 1971), appears to assume allegations of an unlawful arrest, without violence or complicating facts, stated a case for the jury.
Other circuits also have cases recognizing § 1983 jurisdiction where there was little more than an unlawful arrest. See Duriso v. K-Mart No. 4195, 559 F.2d 1274 (5th Cir. 1977); Beightol v. Kunowski, 486 F.2d 293 (3d Cir. 1973); Giordano v. Lee, 434 F.2d 1227 (8th Cir. 1970); Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968) (two hours detention); Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963) (four or five hours detention); cf. Cohen v. Norris, 300 F.2d 24, 30-31 (9th Cir. 1962).
We refused to find a cause of action under § 1983 in a case where a student being ticketed for a traffic violation attempted to drive his car away and refused to sign a ticket. He was taken into custody, handcuffed, transported ten miles to a Justice of the Peace, not allowed to make bond on an American Automobile Association bond card, and kept in a cell for a period in excess of one hour. The court stated that “in the final analysis this incident falls short, not only because the officers acted in accordance with local law requiring that a violator be arrested when he fails to sign the ticket, but also because the case is insubstantial.” Wells v. Ward, 470 F.2d 1185, 1189 (10th Cir. 1972).
Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977) involved a case of mistaken identity. Plaintiff was arrested and kept either in jail or a state mental hospital for 33 days before it was established that police had in fact arrested the wrong person. The key question in the case was whether the investigators of a prosecutor were entitled to the prosecutor’s immunity. The court held that they were under the circumstances of the case. But in dictum it was stated that a plaintiff must also demonstrate a violation of federal constitutional rights; that while the slightest interference with personal liberty would constitute false imprisonment under state law, it does not follow that all such invasions “however trivial or frivolous” are sufficient to invoke a remedy under the Civil Rights Act. We do not read that dictum to mean that false imprisonment for 33 days would be an insubstantial, trivial or frivolous deprivation of personal liberty.
The court below treated the arrest as legal, since there was a valid outstanding warrant against the plaintiff on the overtime parking violation. It viewed the deprivation of liberty as being only for a brief period, i. e., that time after the plaintiff had paid her fine and until the bank officer interrogated her. The court also noted that a state court action had been commenced involving substantially' the same allegations. It thought these factors indicated an insubstantial case. We do not take the same view.
The complaint does not state how much time elapsed between the payment of the fine and the arrival of the bank officer. If it had been a long period perhaps plaintiff would have so alleged in her complaint. But that does not necessarily follow. Further, we do not consider the fact the arrest was made upon a valid warrant necessarily means that the time of the false imprisonment begins only after the fine was paid. The complaint alleged that the purpose of the arrest was in aid of the bank’s debt collection process. It would be relevant to know whether the Topeka police, routinely or even occasionally, go to a person’s home to make an arrest upon a violation for overtime parking. If this is never done unless there is a large accumulation of tickets, then although the warrant would be valid, it could still be an abuse of power. In Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), white and black clergymen were arrested and detained for a few hours for attempting to use a segregated rest room at a Mississippi bus station. The court held that the arresting officers would not be liable under § 1983 if they acted in good faith to arrest under a statute they thought was valid. But it said the officers did not defend on that basis, and the petitioners were entitled to show the officers were not acting in such good faith belief in making the arrest. It remanded for a new trial on the § 1983 claim. We read this case as support for the proposition that an arrest which might be lawful on its face can be an abuse of power, condemned by the Civil Rights Act, if done for an improper purpose.
We must take the allegations of the complaint in the instant case as true when reviewing the grant of a motion to dismiss. This is not a case where a policeman acted with excessive zeal in a legitimate arrest situation, as in Wells v. Ward, supra, or where there was an honest mistake of identity, as in Atkins v. Lanning, supra. It is a case of an arrest, not to collect on the overtime parking ticket, but to give improper aid to the bank. This may be close to the line of being an insubstantial deprivation of liberty, but without the development of facts we cannot say that it is, at least as to White and Reynolds.
All that is alleged against the defendants other than White and Reynolds is that they conspired together and caused the arrest and detention. No specific facts are set out connecting them to the arrest. Even so we think there is sufficient here to pass the applicable liberal construction test. Specific facts are stated with respect to the officer forcing plaintiff to stay at police headquarters until the bank employee arrived. It is reasonable to inquire whether other bank officers or directors knew of and approved this means of intimidation. It is also a reasonable inquiry whether Reynolds contacted only Officer White or whether he may have called someone else in the police hierarchy who relayed the request to the arresting officer.
In many cases of conspiracy essential information can only be produced through discovery, and the parties should not be thrown out of court before being given an opportunity through that process to ascertain whether the linkage they think may exist actually does. Considering a somewhat analogous complaint under the Railway Labor Act the Supreme Court said:
The respondents also argue that the complaint failed to set forth, specific facts to support its general allegations of discrimination and that its dismissal is therefore proper. The decisive answer to this is that the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is “a short and plain statement of the claim” that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such simplified “notice pleading” is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. Following the simple guide of Rule 8(f) that “all pleadings shall be so construed as to do substantial justice,” we have no doubt that petitioners’ complaint adequately set forth a claim and gave the respondents fair notice of its basis. The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197, 58 S.Ct. 507, 82 L.Ed. 745. (Footnotes omitted.)
Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). The Supreme Court has indicated the same position should be taken as to § 1983 complaints. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
It seems unlikely to us that any connection can be shown to keep the mayor in this action. The brief indicates the may- or was added because he was the supervisor of the police. The same may be said as to other defendants. The doctrine of respondeat superior does not apply to these cases. Personal participation will have to be demonstrated to keep them in the case. It may well be that at some stage a motion for summary judgment may be appropriate to let some defendants out. But we hold the complaint is sufficient to withstand a motion to dismiss as to the § 1983 claims.
Thus we affirm the grant of the motion to dismiss the complaint as to the counts involving §§ 1985(2), (3), and 1986 as to all defendants, but not with respect to the § 1983 claims. Each party is to bear its own costs of this appeal. The case is remanded for proceedings consistent with this opinion.
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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songer_casetyp1_1-2
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
UNITED STATES of America, Plaintiff-Appellee, v. DETROIT VITAL FOODS, INC., Lelord Kordel and Alfred Feldten, Defendants-Appellants.
No. 17639.
United States Court of Appeals Sixth Circuit.
Feb. 20, 1969.
Certiorari Denied June 2,1969.
See 89 S.Ct. 1997.
Certiorari Granted June 2, 1969.
See 89 S.Ct. 1998.
Solomon Friend, New York City, for appellants, Bass & Friend, New York City, Allan D. Behrendt, Detroit, Mich., on the brief.
Milton J. Traumbauer, Jr., Asst. U. S. Atty., Detroit, Mich., for appellee, Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief, William W. Goodrich, Asst. Gen. Counsel, Walter E. Byerley, Atty., Dept, of Health, Education and Welfare, Washington, D. C., of counsel.
Before O’SULLIVAN and COMBS, Circuit Judges, and CECIL, Senior Circuit Judge.
COMBS, Circuit Judge.
The defendants were found guilty by a jury on five counts of an indictment charging them with introduction into interstate commerce of misbranded drugs and with causing a drug to be misbranded after it had been shipped in interstate commerce. 21 U.S.C. § 331(a) and (k). The defendant Kordel was sentenced to two years imprisonment and to a fine of $10,000.00. The defendant Feldten was sentenced to one year imprisonment, suspended to thirty days with three years probation, and to a fine of $2,000.00. A total fine of $10,000.00 was imposed upon the corporate defendant.
Detroit Vital Foods, Inc., is a Michigan corporation with headquarters in Detroit. The defendants Kordel and Feldten were its president and vice president, respectively. During 1959, 1960, and 1961, Kordel traveled across the country delivering a series of lectures in different cities. Advertisement of the lectures preceded his appearance and the public was invited to attend. The meetings were held in public halls or auditoriums leased for the occasion by the defendants. Sales booths were established in or near the lecture halls where the audience could purchase the company’s products Aminex, Frutex, Nutri-Time, Korleen, and other products not here in question, usually at special introductory prices. The company’s products were sold not only at the lectures but were generally available in health food stores. Each package had a label attached which described the contents and gave directions for use.
Kordel was the author of numerous books and leaflets, such as “Eat and Grow Younger”, “How to Make People Like You”, “Health Through Nutrition”, and “Is This a New Way to Strengthen Your Heart?”
The books and lectures were discussions of how various physical ailments could be alleviated by the intake of certain foods and food elements. The best source' of these foods and food elements, it was said, were the products offered for sale by the defendants. Leaflets distributed to the lecture audiences were to the effect that the statements made were the personal opinion of the speaker and author and that a physician should be consulted in regard to specific diseases.
Feldten made no speeches but acted as Kordel’s assistant. He sold the products at lectures and took orders for products to be shipped from Detroit.
Kordel in his lectures and published material advertised some products by name. In other instances, he merely related certain chemicals or food elements to the improvement of various physical ailments and recommended the company’s products as the best source. For example:
A combination of chlorine, methionine, and inositol — exactly the ingredients of Korleen — is a successful treatment for cirrhosis of the liver.
Varicose veins existing for twenty-five years were cured in three months with the intake of three Korleen tablets per day.
People may “protect” their bodies from headaches, colds, stiff ankles, poor circulation, gas, constipation, and poor digestion by partaking of a concentrated source of seventy-two different vitamins, minerals, and nutrients — coincidentally, the product which contains all those ingredients is Nutri-Time.
Vitamin C is a preventive and cure for bleeding gums, sore throat, earache, swollen neck glands, pneumonia, and acute rheumatism- — -the best source of Vitamin C is Frutex.
Protein helps form antibodies to fight infection and is the first line of defense; it is most efficiently assimilated within the body when introduced in the form of a concentrated protein tablet — the recommended source is Super Protein Aminex which has a high concentrate of protein and all aminal acids in the proper balance.
Kordel occasionally stated that his remarks had no relation to drugs, that he spoke only of natural nutrients used as food supplements.
Several grounds of assigned error were argued in briefs but we consider it necessary to discuss only one. We hold that the judgments against the individual defendants must be reversed because they were compelled to give testimony against themselves in violation of the Fifth Amendment to the United States Constitution.
While defendants were under investigation for possible criminal violation of the Food, Drug and Cosmetic Act, the Government instituted a civil action against Detroit Vital Foods, Inc., to condemn certain quantities of their products Korleen and Frutex, asserting that these articles were misbranded. In the civil action the defendants were served with extensive written interrogatories seeking comprehensive and detailed information about the corporate defendant and the activities of the individual defendants in connection with the company’s business. Before these interrogatories were answered defendants were notified that the Government contemplated taking criminal action against them because of their activities in connection with Korleen and Frutex.
The defendants filed objections to being required to answer the interrogatories and moved to stay the civil proceedings pending outcome of the contemplated criminal action. The objections and motion were denied by the Honorable Theodore Levin, United States District Judge for the Eastern District of Michigan, who reasoned that the defendants would not necessarily be prejudiced since there was no certainty when, or if, a criminal action would be brought. The defendants then filed answers to the interrogatories pursuant to Judge Levin’s order. Much of the information supplied by the defendants in answer to the interrogatories was necessary to the Government’s case in the criminal prosecution.
Prior to the trial of this action, the defendants moved to quash the indictment and to suppress all evidence and leads obtained by the Government in the civil action. The trial judge, Honorable Ralph M. Freeman, granted a hearing on the motions and thereafter denied them. It was developed at the hearing that the civil case and the investigation of the criminal case went forward on a common front. Information obtained in the civil case was transmitted to those in charge of the criminal investigation, and recommendation for criminal prosecution was not made until after Judge Levin had ordered the interrogatories to be answered in the civil case. The interrogatories were prepared by Mr. Randolph of the Food and Drug Administration in Washington, who made the initial decision to recommend criminal action against the defendants. The answers to the interrogatories were sent to Mr. Randolph and the indictment was prepared in Randolph’s office.
In no sense was the action of the defendants in answering the interrogatories voluntary. When ordered to do so after their objections had been overruled, they had three possible courses available to them. They could still have refused to answer. This almost certainly would have resulted in the forfeiture of their property which had been seized by the Government. They could have given false answers to the interrogatories. This would have subjected them to possible prosecution for perjury. Their third course was to supply the required information, thereby possibly incriminating themselves in the contemplated criminal action. In choosing the third course defendants supplied the Government with evidence and leads helpful in securing their indictment and subsequent conviction. Their choice was a hard one and the specific question is whether they should have been required to make a choice. We think not. A person may not be required to supply information which may possibly incriminate him upon penalty of suffering a forfeiture of his property. This is a “compelling" which is prohibited by the Fifth Amendment. The early case of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), is in point.
Boyd was a civil action to seize goods allegedly imported without the payment of customs duties. The Government attempted to. subpoena invoices which were in the possession of the defendants. The Supreme Court, regarding the action as having a “quasi-criminal” nature, denied the Government’s right to subpoena the invoices, holding that,
“[A] compulsory production of the private books and papers of the owners of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the fifth amendment to the constitution, and is the equivalent of a search and seizure — and an unreasonable search and seizure — within the meaning of the fourth amendment.” 116 U.S. at 634, 635, 6 S.Ct. at 534.
The same principle was involved in Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). There, certain policemen had been convicted of a conspiracy to obstruct the administration of the New Jersey traffic laws. The policemen appealed on the ground that statements obtained in violation of their privilege against self-inerimination were used as evidence to convict them. The incriminatory statements were obtained during an investigation by the New Jersey Attorney General into the fixing of traffic tickets. The policemen were questioned during this investigation, after being informed of their privilege against self-inerimination but were warned that if they refused to answer they could be removed from their jobs.
They answered the questions, and their answers were later used to convict them. The Supreme Court reversed the convictions and held that the use of the statements violated the petitioners’ privilege against self-inerimination. The Court said:
“The choice given the petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or remain silent. That practice, like interrogation practices we reviewed in Miranda v. [State of] Arizona, 384 U.S. 436, 464-465, [86 S.Ct. 1602, 16 L.Ed.2d 694,] is ‘likely to exert such pressure upon an individual as to disable him from making a free and rational choice.’ We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions.” 385 U.S. at 497, 498, 87 S.Ct. at 618, 619.
The Supreme Court has consistently held that a penalty may not be placed upon one for exercising his privilege against self-incrimination. Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), and Slochower v. Board of Education, etc., 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). Also see United States v. Parrott, 248 F.Supp. 196 (D.D.C.1965); United States v. Thayer, 214 F.Supp. 929 (D.C.Colo. 1963); Lord v. Kelley, 223 F.Supp. 684 (D.C.Mass.1963); United States v. Lipshitz, 132 F.Supp. 519 (E.D.N.Y.1955); and United States v. Guerrina, 112 F.Supp. 126 (E.D.Pa.1953).
At the hearing held by Judge Freeman on the motion to quash the indictment and to suppress evidence obtained through the interrogatories, evidence was heard on the issue of the Government’s good faith in bringing the civil action. Judge Freeman concluded that the civil action was brought in good faith and was not a subterfuge to obtain evidence for a criminal prosecution. He held therefore that the evidence was not tainted, relying on Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).
Abel is not controlling here. That case involved a search and seizure issue; compulsory self-incrimination was not involved. The civil and criminal charges in Abel were only remotely related and it was by chance that evidence helpful in a criminal prosecution was obtained in the search. Moreover, the limits of the search were much more restricted than is the scope of permissible inquiry in civil interrogatories. In Abel it was conceded that the questioned evidence was obtained during a legal search of the defendant’s hotel room after he was arrested on a deportation charge. It was claimed by the defendant that the Government was primarily interested in prosecuting him for espionage and that the search of his room was a ruse by Government agents to obtain evidence in the espionage case. The good faith of the Government agents was the issue in question. The question here is whether defendants were coerced to testify against themselves. If they were coerced within the meaning of the Fifth Amendment, the violation cannot be condoned merely because the Government agents acted in good faith. It is little comfort to the aggrieved party that those who deprive him of a constitutional right are men of good intentions.
The Government contends that the Fourth and Fifth Amendments do not prohibit the use of subpoenaed corporate books and records in a criminal prosecution against the corporation and its officers, citing Essgee Co. of China v. United States, 262 U.S. 151, 43 S.Ct. 514, 67 L.Ed. 917 (1923), and Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911). These and other subsequent cases do so hold, but these interrogatories went far beyond a subpoena for corporate books and records. Kordel was president of the company and Feldten was vice president. Feldten signed the answers to the interrogatories in his capacity as vice president but Kordel, as president, was under the same compulsion as Feldten to furnish the answers. Although the privilege against self-incrimination is personal, United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944), the interrogatories were for the most part requests for admissions by and information about the individual defendants, Kordel and Feldten. Many of the interrogatories required answers revealing Kordel’s activities, speeches, and representations then under scrutiny in the contemplated criminal action. An officer in a corporation does not lose his personal privilege against self-incrimination under the Fifth Amendment by reason of his corporate position.
In Wilson, which is a forerunner of those cases holding that corporation officers may not invoke their Fifth Amendment rights to prevent the production of corporate records, Mr. Justice Hughes drew the distinction in these words:
“They may decline to utter upon the witness stand a single self-incriminating word. They may demand that any accusation against them individually' be established without the aid of their oral testimony or the compulsory production by them of their private papers.” 221 U.S. at 385, 31 S.Ct. at 546.
It is said in the Government’s brief that all of the evidence used in the criminal case was obtained by independent investigation and that evidence obtained through the interrogatories was not used in the criminal action. We find no tangible support in the record for this statement. It is admitted by Mr. Fowler, the Government agent on whose testimony the indictment was returned — he was the only witness who appeared before the grand jury, that he used the answers to the interrogatories in preparing his testimony before the grand jury. There is no showing by the Government that any attempt was made at any stage of the proceedings to separate the two cases. There is no testimony or avowal by those who investigated and prosecuted the criminal case that they failed to use evidence and leads obtained through answers to the interrogatories. It is admitted by Government witnesses that in the enforcement of the Federal Food, Drug and Cosmetic Act it is not unusual for the Government first to commence a civil action and then use information obtained in that case in parallel criminal proceedings. Information obtained from whatever source is placed in one general file. We note, too, that the interrogatories submitted by the Government were broader than would ordinarily be needed in a civil case. Some of the interrogatories were directed specifically toward the activities of Leland Kordel, president of Detroit Vital Food, Inc., and the principal defendant in this case. We conclude from this record that evidence and leads obtained by reason of the interrogatories were used against the defendants in the criminal case.
It is pointed out by the Government that the Fifth Amendment privilege against self-incrimination is available only to natural persons and not to a corporation. We agree that this defense is not available to the corporate defendant, Detroit Vital Foods, Inc. Campbell Painting Corp. v. Reid, 392 U.S. 286, 88 S.Ct. 1978, 20 L.Ed.2d 1094 (1968).
It is also argued by the Government that the Fifth Amendment privilege is not available to the individual defendant Kordel because he made no claim to the seized property and supplied no answers to the interrogatories. With this argument we do not agree. It is clear from the record that Detroit Vital Foods, Inc., was merely the corporate device through which Kordel sold his products. The Government naturally wanted to cut through the facade and get to Kordel who was the president and dominant personality in the corporation. Although the extent of Kordel’s ownership in the corporation is not disclosed by the testimony before us, he evidently was a major stockholder. He therefore had a financial interest in the seized property and certainly, as president of the company, he participated in the decision to answer the interrogatories. Aside from this, if it should be conceded that Kordel was under no coercion to answer the interrogatories, we are of the opinion that Feldten’s admissions were not admissible against him under the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We conclude therefore that evidence and leads obtained by reason of the interrogatories should have been suppressed against the individual defendants in the criminal case.
We do not hold that a government agency may not institute and prosecute civil proceedings on charges that may also involve a possible criminal proceeding against the same persons. We hold merely that the Government may not use evidence against a defendant in a criminal case which has been coerced from him under penalty of either giving the evidence or suffering a forfeiture of his property.
The judgment is reversed as to the individual defendants, Kordel and Feldten, and the case is remanded for proceedings consistent with this opinion. The judgment is affirmed as to the corporate defendant, Detroit Vital Foods, Inc.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
|
songer_respond2_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
Sargent CAUEFIELD and Jim Lucas, Appellants, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK et al., Appellees.
No. 23412.
United States Court of Appeals Fifth Circuit.
June 15, 1967.
J. D. DeBlieux, Baton Rouge, La., for appellants.
Robert J. Vandaworker, Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., for Southern Farm Bureau Cas. Ins. Co.
Maurice J. Wilson, of Breazeale, Sachse & Wilson, Baton Rouge, La., for defendant-appellee, Fidelity & Casualty Co. of New York.
Before HUTCHESON, GEWIN and THORNBERRY, Circuit Judges.
HUTCHESON, Circuit Judge:
These cases, consolidated for trial, were brought by Sargent Cauefield and Jim Lucas to recover damages for the alleged desecration of a Louisiana cemetery in which relatives of theirs are buried. The district court granted a motion by defendants to dismiss on the theory that the suit was foreclosed by the doctrine of judicial estoppel, as applied in Louisiana, due to a previous state court judgment which denied a similar claim made with respect to the same cemetery. We affirm.
The background details of this controversy and the legal principles involved were set forth in full in the opinion of the district court reported at 247 F.Supp. 851. It, therefore, suffices ' that they be summarized only briefly here. The owner of a tract of land on which a cemetery is located in Louisiana, feeling that the cemetery had become too overgrown with brush, decided to clear the land. In March, 1956, he hired a dirt contractor to help him do so. After the land was cleared, a total of forty-one relatives of those buried in the cemetery filed numerous suits in the state courts, therein alleging that the cemetery had been desecrated as a result of the cleaning operations. One of those suits, filed by one Sid Thomas against the cemetery owner, the contractor, apd their insurers, was commenced and tried before a jury. In the trial lasting nine days, all the interested relatives testified, and the appellants here were active participating witnesses. After all the evidence relating to desecration was presented, the jury found that no desecration had occurred, and the verdict was affirmed on appeal.
The instant ease was filed originally by appellants in the court below in November, 1956. The record shows that the matter was continued indefinitely until after completion of the Thomas case in the state courts. It was not until the Thomas case was concluded that this case was considered on its merits. Defendants’ motion to dismiss was granted in 1965. It thus appears that the Thomas case tacitly was intended to resolve all the numerous identical claims that the cemetery had been desecrated. Nevertheless, after appellate procedures in the Thomas case were exhausted, appellants Cauefield and Lucas, represented by the same attorney who had represented Thomas and all the other plaintiffs in the state courts, requested the same relief from the court below which had been denied to Thomas by the Louisiana state courts.
The appellants concede that the issues concerning desecration which they ask to be tried in federal court would be identical to those already tried in the state court and resolved against Thomas. The appellants also concede that the evidence and testimony they would be able to produce would not differ in the least from that which they themselves and the other relatives presented and which was passed on in the Thomas case. These two concessions are particularly significant in light of the proof necessary to support an allegation of cemetery desecration in Louisiana. The plaintiff needs only to prove that any part of the cemetery has been desecrated. Humphreys v. Bennett Oil Corp., 195 La. 531, 197 So. 222, 228 (1940). Thus it was not necessary for Thomas to have proved that his own relative’s grave had been disturbed; it would have been sufficient for the jury to have accepted the testimony of any witness, including appellants, that any grave in the cemetery had been desecrated. Consequently, it is clear that all evidence favorable to appellants which could be presented in another trial has already been rejected by the state courts. Nonetheless, they insist that the district court was in error in applying the doctrine of judicial estoppel for the reason that, the plaintiffs of this case being different from that in the Thomas case, the alleged requirement that the parties in the two cases be identical is lacking.
We observe at the outset that under Louisiana law, which governs this diversity action, the doctrine of res judicata plainly does not apply to the instant case. The concept of res judicata is strictly defined by the Louisiana Civil Code to require identity of parties, and the state courts have applied this definition uncompromisingly.
On the other hand, the doctrine of judicial estoppel, a common-law concept recognized in Louisiana, California Co. v. Price, 234 La. 338, 99 So.2d 743, 747 (1957), has been viewed less rigidly. Although identity of parties also is generally considered a requisite for its application, the Louisiana courts have seen fit to fashion exceptions in circumstances analogous to those presented here. We conclude that the underlying principle of those exceptions also controls the instant case.
The first case making such an exception was Muntz v. Algiers & G. St. Ry., 116 La. 236, 40 So. 688 (1906). In the plaintiff’s first suit for negligence against a lessee of a railroad, it was decided that the lessee was not negligent. The plaintiff subsequently proceeded against the lessor railroad on the theory that it was liable vicariously for its lessee’s negligence which the plaintiff attempted to have litigated again. The Louisiana Supreme Court held that the former judgment in favor of the lessee barred the subsequent suit against the lessor even though the defendants were not identical. A similar holding obtained in McKnight v. State, 69 So.2d 652 (La. Ct.App.1953). There the plaintiff had lost a suit based on negligence against three state police officers. He then sued the state, the employer of the officers, seeking to apply the doctrine of respondeat superior. Relying on Muntz, the court dismissed the latter suit.
The Louisiana Supreme Court recently has commented on those two cases. In Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960), although it first noted that both Muntz and McKnight had been erroneously founded on the doctrine of res judicata due to the absence of identity of parties, it nevertheless approved the results reached and their rationale “that a plaintiff’s cause of action abates against the person secondarily liable when it is shown that he has already litigated with the tortfeasor [who has been] held to be without fault. Accordingly, a plea in bar of judicial estoppel would have been appropriate pro-cedurally.” 124 So.2d at 922. (emphasis added).
This principle again was expressed in Bowman v. Liberty Mut. Ins. Co., 149 So.2d 723 (La.Ct.App.1963). The plaintiff had sued the employer first in a federal district court to recover damages arising from the alleged negligence of the defendant’s employee while acting in the scope of employment. After losing that suit, plaintiff brought an action in the state court against the employee. The state court declared that the real Issue, the employee’s negligence, had already been determined and that to permit a new trial would only condone a multiplicity of trials. Notwithstanding the defendants were not the same, the second suit was dismissed.
This line of cases evidences a willingness by the Louisiana courts to relax the identity-of-parties requirement with respect to the application of judicial estoppel where it will prevent fruitless relitigation of an issue which already has been judicially determined. Thus far this attitude seems to have found expression only where vicarious or secondary liability is involved, such as that arising out of an employer-employee or lessor-lessee relationship. We are convinced, however;, that presented with the unusual facts of the case before us, the Louisiana courts also would find that appellants are estopped by the state court judgment in order to preclude re-litigation of the desecration issue. In reaching this opinion, we think it significant that the nature of this issue is such that desecration could have been established in the Thomas case by evidence of any relative, including the evidence offered by appellants, that any part of the cemetery had been desecrated. We reiterate that appellants admit that they can come forward with no evidence which was not produced at the Thomas trial. Under these circumstances, we are further convinced that absolutely nothing would be gained were appellants permitted to pursue their action in the federal courts. We therefore hold that under the particular facts of this case the district court correctly applied the doctrine of judicial estoppel in granting the motion to dismiss.
The judgment is affirmed.
. Art. 2286, LSA-Civil Code provides: “The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.” (emphasis added).
. This language was criticized in McMahon, Civil Procedure, 22 La.L.Rev. 370, 374 n. 16 (1962).
. The court in Bowman relied on res judieata for its decision. The reasoning of Williams v. Marionneaux, supra, indicates that this case should be regarded the same as were Muntz and McKnight: the result is correct since the application of judicial estoppel would have been appropriate.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
AIRCRAFT & DIESEL EQUIPMENT CORP. v. HIRSCH et al.
No. 95.
Argued January 15,1947. —
Decided June 16, 1947.
Arthur R. Hall argued the cause for appellant. With him on the brief were Earl B. Wilkinson, Francis W. Hill, Jr. and J. Alfred Moran.
Robert L. Stern argued the cause for appellees. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Sonnett, Paul A. Sweeney and Ray B. Houston.
MR. Justice Rutledge
delivered the opinion of the Court.
This case is the fourth in a series seeking here a determination of the invalidity, on constitutional grounds, of the First and Second Renegotiation Acts and allied legislation.
In Coffman v. Breeze Corporations, 323 U. S. 316, and in Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129, the Royalty Adjustment Act was attacked. The Alma Motor case was remanded to the Circuit Court of Appeals for a determination of the Act’s applicability. The suit in the Coffman case was by a patent owner to restrain his licensees from paying accrued royalties to the Government pursuant to the Act’s provisions. We held that the complaint had been rightly dismissed for want of equity jurisdiction, since the plaintiff had an adequate remedy at law by suit against its licensees, and also for want of a justiciable case or controversy.
In Mine Safety Co. v. Forrestal, 326 U. S. 371, a government contractor challenged the Renegotiation Acts. The complaint sought to enjoin the Secretary of the Navy from taking action “which would stop payment by the government of money lawfully in the United States Treasury to satisfy the government’s and not the Secretary’s debt to the appellant.” 326 U. S. at 374. Accordingly we held that the Government was an indispensable party. Since it neither had been joined in the suit nor had consented to be sued in such a proceeding, it followed that the complaint had been properly dismissed.
In one other case, Macauley v. Waterman S. S. Cory., 327 U. S. 540, constitutionality was not involved, but coverage of the Renegotiation Acts was put in issue. The suit was brought in a District Court for a declaratory judgment and to restrain further renegotiation proceedings affecting the specified contracts. The contractor had not sought a decision on coverage from the Tax Court. We held that the Tax Court has power to decide such questions in the proceedings authorized by § 403 (e) (1) of the Second Renegotiation Act. Hence, under the authority of Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, the complaint in the Waterman case'also was held rightly to have been dismissed, in this instance for the plaintiff’s failure to exhaust its administrative remedy.
Now the Aircraft & Diesel Equipment Corporation seeks a declaratory judgment that the First and Second Renegotiation Acts are unconstitutional on various grounds. Injunctive relief also is asked. And, in addition to the constitutional questions, determination is sought of issues of coverage and other matters.
The defendants, appellees here, consist of the members of the War Contracts Price Adjustment Board, the Secretary of War, and the Under Secretary of War. Pursuant to the statutory requirement, 50 Stat. 751, 752, 28 U. S. C. § 380 (a), a district court of three judges was especially convened. After hearing, the complaint was dismissed. One ground for this action was that the suit is premature, since proceedings were pending and undetermined in the Tax Court, pursuant to appellant’s applications, for redetermination of its allegedly excessive profits for 1942 and 1943. The court also held that it was without jurisdiction in equity, since in its view adequate remedy at law was available to Aircraft. Probable jurisdiction of the appeal was duly noted here.
We think the District Court correctly dismissed the complaint, and for the reasons stated as grounding its action. The issues expansively include almost all comprehended in the causes previously determined here. But the case reaches this Court in a posture differing in some substantial respects from that characterizing any of those proceedings. Hence it becomes necessary to set forth with some particularity the facts and controlling issues.
I.
Appellant is in the business of manufacturing diesel fuel injection equipment and precision parts, and aircraft precision parts. Its manufacturing activities, insofar as material, were carried on under subcontracts with government contractors. The contractor in turn furnished the completed aircraft or engines to the United States.
Pursuant to the First Renegotiation Act, the Secretary of War, acting through his delegate the Under Secretary of War, determined on October 27, 1943, that during the fiscal year ended November. 30, 1942, appellant had realized excessive profits (less tax credits) amounting to $204,000. On April 29, 1944, the Under Secretary directed appellant’s customers to withhold this sum from appellant. Thereafter it filed a petition with the Tax Court for a redetermination of the alleged excessive profits. Nevertheless, on July 19, 1944, the Under Secretary further directed appellant’s customers to pay the $204,000 into the Treasury of the United States, and this direction was obeyed.
Following the fiscal year ended November 30, 1943, renegotiation proceedings were instituted under the Second Renegotiation Act. On January 11, 1945, the Under Secretary of War, as delegate of the War Contracts Price Adjustment Board, entered an order determining that appellant had realized excessive profits of $1,265,000. Deduction of tax credits reduced this amount to approximately $270,000. Appellant again filed a petition for redetermination with the Tax Court. Then followed this suit.
The amended complaint is too lengthy for detailed sum-marization in this opinion. Apart from allegations going to constitutionality and coverage, including asserted defects in the renegotiation procedures followed, the complaint sought to establish jurisdiction in the District Court, equitable in character, by showing the inadequacy of all available legal or other remedies. These included the pending Tax Court proceedings, possible suit in the Court of Claims following completion of the Tax Court’s determination, and actions at law against appellant’s customers, contractors with the Government, to recover the amounts said to be due under their various contracts.
In particular it was alleged that, notwithstanding the pendency of the Tax Court proceedings, the Board and the Secretary, or his delegates, were taking steps to prevent Aircraft’s customers from paying over to it moneys owing on contracts, aggregating $270,000, and claimed to be due the Government as excessive profits. The complaint alleged further that the Board and the Secretary were threatening to direct Aircraft’s customers to pay these sums into the Treasury and that, unless they were restrained, such payment would be made, to appellant’s irreparable injury. No direct relief was asked, by way of judgment or decree, for refund of the $204,000 collected by the Government from appellant’s customers, pursuant to the First Renegotiation Act, as excessive profits realized in 1942. It was suggested, however, that if that Act should be found invalid and the Second Act sustained, the Government should be permitted to collect only the difference between $270,000, the amount determined to be excessive profits for 1943, and the $204,000 collected for 1942. The suggestion, of course, if formally made, would be substantially a claim against the Government by way of setoff of the latter amount. Cf. Mine Safety Co. v. Forrestal, supra.
The Government has contested each of appellant’s claims. But its primary contentions have been aimed at Aircraft’s jurisdictional showing. It argues that the suit in substance and legal effect is one against the United States, to which there has been no governmental consent, cf. Mine Safety Co. v. Forrestal, supra; that the suit is premature, because the Tax Court proceedings have not been completed and until this has been done Aircraft will not have exhausted its administrative remedy, cf. Macauley v. Waterman S. S. Corp., supra; that the Tax Court has been given exclusive jurisdiction in renegotiation matters; and that, in any event, there is no jurisdiction of an equitable character in the District Court, to afford the relief appellant seeks, since it has an adequate remedy at law by suit upon its contracts to recover any amounts due from its customers, in which all questions of constitutionality may be determined. Cf. Coffman v. Breeze Corporations, supra.
In the latter connection appellee Hirsch, as chairman of the Board, has filed an affidavit admitting that he and the other appellees, unless restrained, will take steps, as appellant alleges, to prevent payment of the $270,000 by its customers to it, and also to secure payment of that sum into the Treasury. The affidavit sets forth, however, that direction for payment will not be required or made as to more than two or three of appellant’s customers and, in the event this does not result in payment of the full amount, the Government will proceed to collect whatever may remain by suit against appellant.
Aircraft, on the other hand, both in the amended complaint and by the supporting affidavit of its president, alleged that no such sum as $270,000 was owing to it from, or could be collected by direction to, any two or three of its customers. Rather it was set forth that collection of any such amount could be made only by direction to some sixteen or more customers. And on the same basis it is asserted that Aircraft’s remedy by suit against its customers would require institution of numerous actions in different jurisdictions, resulting in expense and delay, as well as loss of good will and incurring the continued risk of the customers’ solvency. Accordingly Aircraft claims that jurisdiction in equity is conferred upon the District Court both by reason of the multiplicity of suits involved in asserting the legal remedy by actions against its customers and because of the injurious consequences which would follow from pursuing that course.
II.
We do not find it necessary to undertake determining the threshold question whether the suit is one against the United States. Were the issue squarely presented as a formal claim for refund or setoff concerning the $204,000 collected by the Government for 1942, the case in that aspect would be very close to Mine Safety Co. v. Forrestal, supra.
We do not tarry, however, to consider further this feature of the case, since the absence of formal and specific claim in the nature of setoff or otherwise indicates, we think, a strategic decision to avoid the difficulties which would follow upon its definite and unequivocal assertion, on the score of the nature of the suit as being one in fact and function against the Government. Something more than a mere suggestion of claim for relief is required to bring into play judicial power of affording remedy, especially when it appears there may be good reason deliberately accepted for going no farther. This is reinforced when the suggestion, if acted on, would involve the Court in decision of serious constitutional questions. They are not to be entertained upon dubious presentations or, most certainly, when the presentation reasonably may be taken as not intended to put them forward squarely and inescapably. Cf. Rescue Army v. Municipal Court, 331 U. S. 549; Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129. Accordingly we put to one side the lengthy allegations concerning the 1942 determination, and confine our consideration to the issues relating to the redeter-mination made for the fiscal year of 1943.
These also, the Government urges, substantially are effective to make the suit one against the Government, to which it has not consented. And for this view, likewise, it relies upon the Mine Safety decision, as well as others. Appellant undertakes to distinguish the cases upon the basis that in the Mine Safety case the official action sought to be enjoined was conduct effective to stop the payment of funds out of the Treasury, whereas here the analogous conduct affects no funds in the Government’s actual possession but seeks only to touch moneys held by third persons for appellant’s or the Government’s account. The difference, it is urged, is between action affecting only the withholding of government moneys and action effective to bring about collection from third persons of moneys claimed to be due to the Government.
That difference indeed may be substantial. But we do not decide whether it is sufficient to enable the appellant to avoid the difficulty presented of foreclosing the Government’s claim by a suit brought only against its officials, essentially as trespassers, without joining the Government itself. In other words, we do not determine whether the suit is, in legal effect, one against the Government, since in our opinion the other grounds going to the District Court’s jurisdiction are adequate to sustain its dismissal of the cause.
Ordinarily of course issues relating to exhaustion of administrative remedies, as a condition precedent to securing judicial relief, and to the existence of jurisdiction in equity are either separate or separable matters, to be treated as entirely or substantially distinct. The one generally speaking is simply a condition to be performed prior to invoking an exercise of jurisdiction by the courts. The other goes to the existence of judicial power in the basic jurisdictional sense. In this case, however, the exhaustion problem and that of equity jurisdiction are closely, indeed inseparably, related. And both are colored by the relevant specific provisions of the Renegotiation Acts, more particularly the Second, since it alone provides for Tax Court redetermination.
In Macauley v. Waterman S. S. Corp., supra, we were called upon to consider the relation between the Tax Court proceedings; as provided by § 403 (e) (1), and judicial proceedings instituted in the district or other courts of the United States in regard to renegotiation matters. Section 403 (e) (1) authorizes “any contractor or subcontractor aggrieved by an order of the Board determining the amount of excessive profits received or accrued by” him, to file a petition for redetermination with the Tax Court within ninety days after notice of the order is mailed. The section then provides:
“Upon such filing such court shall have exclusive jurisdiction, by order,, to finally determine the amount, if any, of such excessive profits received or accrued by the contractor or subcontractor, and such determination shall not be reviewed or redetermined by any court or agency.”
The section expressly states that the proceeding “shall not be treated as a proceeding to review the determination of the Board, but shall be treated as a proceeding de novo.” And the Tax Court is given the same powers and duties, “insofar as applicable,” respecting “the contractor, the subcontractor, the Board and the Secretary, and in respect of the attendance of witnesses and the production of papers,” together with other procedural matters, as the court has under specified sections of the Internal Revenue Code in redetermining a deficiency in taxes. Moreover, § 403 (e) (1) commands: “The filing of a petition under this subsection shall not operate to stay the execution of the order of the Board under subsection (c) (2).”
In the Waterman case, taking account of these provisions, we said: “The legislative history of the Renegotiation Act, moreover, shows that Congress intended the Tax Court to have exclusive jurisdiction to decide questions of fact and law, which latter include the issue raised here of whether the contracts in question are subject to the Act.” 327 U. S. at 544. “To grant the injunction sought,” the opinion continued, “the District Court would have to decide this issue in the first instance. Whether it ever can do so or not, it cannot now decide questions of coverage when the administrative agencies authorized to do so have not yet made their determination. Here just as in the Myers case, the administrative process, far from being exhausted, had hardly begun. The District Court consequently was correct in holding that it lacked jurisdiction to act.” Ibid., 544 — 545.
The Waterman case differed from this one in three respects. There the appellant had “hardly begun” the administrative process, while here Aircraft has done all that it can do. The Waterman Corporation had contracted directly with a government agency, the Maritime Commission. Here the appellant is a subcontractor, a difference of some importance in the matter of jurisdiction in equity later to be noted. The Waterman case, as we have said, raised only questions of coverage, not issues of constitutionality. Here both types of question are presented. On the other hand, the cases are substantially identical in the nature of the relief sought. Each complaint asked for a declaratory judgment upon the legal issues and for injunctive relief restraining further action looking toward application óf the Act’s provisions.
We do not think the differences mentioned are sufficient to distinguish the cases for purposes of applying the exhaustion rule. Certainly no such effect can be derived from the fact that in the Waterman case the plaintiff had not begun the administrative process, while here Aircraft has gone as far as it can. The doctrine, wherever applicable, does not require merely the initiation of prescribed administrative procedures. It is one of exhausting them, that is, of pursuing them to their appropriate conclusion and, correlatively, of awaiting their final outcome before seeking judicial intervention.
The very purpose of providing either an exclusive or an initial and preliminary administrative determination is to secure the administrative judgment either, in the one case, in substitution for judicial decision or, in the other, as foundation for or perchance to make unnecessary later judicial proceedings. Where Congress has clearly commanded that administrative judgment be taken initially or exclusively, the courts have no lawful function to anticipate the administrative decision with their own, whether or not when it has been rendered they may intervene either in presumed accordance with Congress’ will or because, for constitutional reasons, its will to exclude them has been exerted in an invalid manner. To do this not only would contravene the will of Congress as a matter of restricting or deferring judicial action. It would nullify the congressional objects in providing the administrative determination. In this case these include securing uniformity of administrative policy and disposition, expertness of judgment, and finality in determination, at least of those things which Congress intended to and could commit to such agencies for final decision.
There can be no doubt whatever, in view of the legislative history, that Congress had each of these ends in view when it provided for the Tax Court proceedings, as well as for action by the Board prior to that stage. -Indeed the Board was created in large part to bring under a single aegis the last stage of informal renegotiation before the Tax Court action, in order thus to secure as nearly as possible uniform policy and administration of renegotiation problems. This policy was followed and reinforced in the provision for Tax Court redetermination. And that procedure was chosen deliberately in preference to judicial review in the Court of Claims or elsewhere, primarily because of the Tax Court’s expertness in fiscal matters analogous to those arising in connection with renegotiation problems, as well as its essentially judicial procedures and experience.
It is equally clear that Congress intended to endow the Tax Court’s decisions with a very large degree of finality, as appears from the very terms of § 403 (e) (1), from the whole structure of the Act, and from the legislative history. The express command of § 403 (e) (1) is not simply that the Tax Court shall have “exclusive jurisdiction, by order, to finally determine” the amount of excessive profits, if any. It is also that the determination “shall not be reviewed or redetermined by any court or agency.” This is buttressed by the prohibition that filing the petition shall not operate to stay execution of the Board’s order under § 403 (c) (2). And not irrelevant to the statute’s general policy of finality are the provisions making the Board’s determinations final, if the petition for Tax Court redetermination is not filed in the specified time, and those of the Secretary or his delegates final if similar action is not taken to secure redetermination by the Board. § 403 (c) (1).
True, the statute expressly confers rights to follow through the various stages of the procedure to the end of the Tax Court phase. Nevertheless its entire structure indicates the congressional purpose to have matters of renegotiation promptly and expeditiously settled; and to accomplish this as far as possible both by informal negotiations and by introducing the compulsion of finality at every stage unless each succeeding one is taken as commanded.
At the height of the war Congress recognized, as did the procuring agencies, that speed in procurement, and consequently in production of war materials, outweighed all other considerations normally applicable. And while renegotiation was a product of that necessity rather than a cause, the problems it raised were time consuming and closely related to pricing difficulties. Often they worked to hinder and delay the process of procurement. Congress therefore sought, so far as possible, to relieve the interrelated processes from the tedious burden of litigation. It did this by writing the policy of finality into the Act’s provisions at each successive procedural stage, although saving the right of resort eventually to the Tax Court to those acting promptly in the prescribed way.
We do not express any opinion, indeed we explicitly reserve decision, upon the question of the finality of Tax Court decisions in these matters. But we cannot infer from a statute so conditioned in background, purpose, terms and compulsion derived from the inevitable circumstances of its application that Congress intended to allow skirting the procedures devised altogether or partially, more particularly in any case where following them could result in no greater loss than the delay and inconvenience which would flow from inability to seek some other remedy not dependent upon their completion.
We are not forced in this case, however, to decide whether Congress intended to give the Tax Court the last word upon all questions of fact and law, or whether it could do so if that were surely its purpose. Nor need we become involved in an attempt to decide what particular questions it might have left, or did leave, for that body’s final and conclusive disposition. For it seems obvious, in view of the Act’s terms, history, objects and the policies incorporated, that Congress clearly and at the very least intended the Tax Court’s functions not only to be put in motion but to be fully performed, before judicial intervention should take place at the instance of one in appellant’s position.
This indeed was the ruling of the Waterman case. And we do not think the effect of that ruling is exhausted simply because constitutional questions were not raised there, but have been put forward in this cause. Nor is it overcome, in our judgment, by the showing which has been made on this record of irreparable injury and of the need as well as the power of equity to forestall the complete operation of the congressionally prescribed procedure.
On the contrary, whatever may be true of other situations, in this case the very fact that constitutional issues are put forward constitutes a strong reason for not allowing this suit either to anticipate or to take the place of the Tax Court’s final performance of its function. When that has been done, it is possible that nothing will be left of appellant’s claim, asserted both in that proceeding and in this cause, concerning which it will have basis for complaint.
The Tax Court may decide entirely in appellant’s favor. Indeed, if it can sustain there the claims and issues it offers to support here, that possibility is not an unlikely one. For, apart from the questions of constitutionality and of the Tax Court’s power to decide them finally or otherwise, appellant has put forward, in both proceedings, claims of exemption and noncoverage relating to contracts involving much larger amounts than the aggregate sums affected by renegotiation, after deduction of tax credits. And if those claims are well founded, as to which of course we express no opinion, the Tax Court’s determination of these matters of coverage, which we held in the Waterman case are initially at least for its disposition, well might render consideration of the constitutional questions by it unnecessary and this cause moot.
Certainly that possible outcome should not be anticipated, either here or by the District Court, through a decision in this case on the constitutional issues. Rescue Army v. Municipal Court, 331 U. S. 549. No more should it be forestalled by decision upon the matters of coverage. Macauley v. Waterman S. S. Corp., supra.
It is true that the presence of constitutional questions, coupled with a sufficient showing of inadequacy of prescribed administrative relief and of threatened or impending irreparable injury flowing from delay incident to following the prescribed procedure, has been held sufficient to dispense with exhausting the administrative process before instituting judicial intervention. But, without going into a detailed analysis of the decisions, this rule is not one of mere convenience or ready application. Where the intent of Congress is clear to require administrative determination, either to the exclusion of judicial action or in advance of it, a strong showing is required, both of inadequacy of the prescribed procedure and of impending harm, to permit short-circuiting the administrative process. Congress’ commands for judicial restraint in this respect are not lightly to be disregarded.
More especially is this true with legislation, of this type, adopted during and to meet the emergency of war and resting, at least in part, upon war powers. For, in such cases, “only if we could say in advance of resort to the statutory procedure that it is incapable of affording due process to petitioners could we conclude that they have shown any legal excuse for their failure to resort to it or that their constitutional rights have been or will be infringed,” Yakus v. United States, 321 U. S. 414, 435, a statement implicitly requiring exhaustion, not merely initiation, of the statutory procedure.
We need not decide in this case, however, whether mere doubt concerning the adequacy of administrative or other relief would be sufficient for allowing anticipation of the administrative determination. For that course is not to be followed if there is another remedy, not inconsistent with the congressional command, and of certain character, even though it be neither so expeditious or convenient as some other sought to be substituted which circumvents that command. To this of course should be added the further qualification that following the prescribed remedy, upon the showing made, will not certainly or probably result in the loss or destruction of substantive rights.
/, This brings us to consideration of the showing made / here in support of equity’s intervention. That showing, I we think when considered in the light of the foregoing I principles and of the statute’s clear purpose and intent,'is not sufficient.
Whatever may be the scope allowed generally for equity to intervene upon the ground of inadequacy of legal remedies, where no explicit congressional command exists for following a prescribed procedure, the problem when such a mandate is present is entirely different from one tendered in its absence. The very fact that Congress has made the direction must be cast into the scales as against the factors which, without that fact, would or might be of sufficient weight to turn the balance in favor of allowing utilization of equity’s resources. That fact itself may be of such weight as to turn the scales the other way, even in situations much more doubtful than the present one. In short, the so-called general principles governing the exercise of jurisdiction in equity are not to be taken, in such a case, as isolated from all effect of the legislative mandate or necessarily or even readily as overriding it.
In the first place, there can be no doubt of the availability or indeed of the certainty and effectiveness of appellant’s remedy at law by suit upon its contracts against its customers claimed to owe it money under those agreements. Suits of that character are not forbidden, either expressly or impliedly by the Renegotiation Acts. Nor are they made dependent upon completion of the Tax Court proceedings. Moreover we know of no reason why every question of constitutionality which has been raised in this suit could not be presented and determined in such a suit.
In addition, there is special reason in the statutory provisions why that course should be followed rather than allowing the present suit. Appellant is, as we have pointed out, a subcontractor, not a contractor with the Government. While its suit could be instituted directly only against the contractor with whom it had dealt, nevertheless it is hardly conceivable that the Government would permit the suit to go to final judgment without intervention by it or, at the least, undertaking the responsibility for making the defense. For by § 403 (c) (2) it is expressly provided: “Each contractor and subcontractor is hereby indemnified by the United States against all claims by any subcontractor on account of amounts withheld from such subcontractor pursuant to this paragraph.”
In the face of this indemnity, the contractor becomes substantially a stakeholder as between the Government and the subcontractor, and the latter’s suit against the contractor, if terminated favorably to the complainant, would obligate the Government to indemnify or reimburse the contractor for the liability thus incurred. In effect, the Government has consented to suit by the contractor in the Court of Claims on account of any liability the contractor incurs by virtue of lawful payment of the subcontractor’s claims.
Accordingly, there would seem to be no substantial reason for regarding the suit against the contractor as inherently inadequate or ineffective for the protection of any rights of the appellant, including constitutional ones. In this respect the case stands identically with Coffman v. Breeze Corporations, supra. If any such inadequacy exists, it must be by virtue of factors extraneous to the nature of the suit itself and not present in the Coffman case.
These appellant seeks to establish in its showing relating to multiplicity of suits and irreparable injury. Apart from multiplicity, the showing concerning injury certainly would not be sufficient to justify eliminating the Tax Court proceeding. Boiled down, the allegations come to appellant’s assuming, for the period necessary to secure either the Tax Court’s decision or final judgment in suits against its customers directed to withhold, the continued risk of their solvency, without specific allegation that any of them is seriously so threatened or facts to support such a claim; and to deprivation, for the same period, of the use of $270,000 directed to be withheld. We do not think this showing alone, without regard to multiplicity, approaches what would be required to sustain the intervention of a court of equity, particularly in order to avoid or anticipate the congressionally authorized proceeding.
Nor, in the facts of this case, is the showing made concerning multiplicity of suits sufficient for that purpose. Appellant’s case as made in this feature is that it would be forced to sue some sixteen “or more” customers, in various and scattered jurisdictions, with consequent expense of litigation and “resultant ill-feeling and irreparable injury” to good will and appellant’s business. On the other hand stands the affidavit of appellee Hirsch that direction for withholding and payment into the Treasury will not be needed or given in more than two or three instances, and in case any balance should remain it will be collected through suit instituted by the Government.
Whether the District Court accepted one version of the facts or the other, it found there was no sufficient basis in the claim of multiplicity to sustain equity’s assumption of jurisdiction. We would not be disposed to override that judgment of the trial court, turning as much as it may upon questions of fact.
Moreover, it is not apparent, at any rate from the allegations, why it would be necessary for appellant to sue all of the sixteen customers or indeed perhaps more than one of them in order to secure a determination of its constitutional rights or preserve its rights. A single test suit would serve the former purpose fully, and there are no allegations of fact sufficient to show that appellant’s rights of recourse against others probably would be lost by awaiting the outcome of such a suit, either legally through the operation of statutes of limitations or practically, as we have said, through any probable incidence of insolvency.
In the absence of either kind of showing, the injury appellant seeks to avoid by the argument of multiplicity actually comes down, as we have said, to deprivation of the use of the amount withheld for the period required for completion of the Tax Court proceedings or a test suit against a customer. Whether or not there will be any injury in this limited respect depends of course, first, on the outcome of the Tax Court proceedings, particularly in relation to the matters of coverage; second, on whether, upon the assumption that those proceedings sustain the Government’s claim as to all or part of the $270,000, the amount thus found due is finally held, in authorized litigation, to be due and owing to the appellant or to the Government. And, as we have also said, if that result should favor the appellant, the Government’s obligation to indemnify the contractor would be, in effect, indirectly available to appellant to indemnify it for any loss of the use of the moneys withheld.
Whatever might be true in other circumstances, this showing as to the necessity for suing many customers is hardly sufficient to justify the substitution of equity’s extraordinary relief for what in all the conditions of this case appears to be a full, adequate and completely available remedy at law. Coffman v. Breeze Corporations, supra; Macauley v. Waterman S. S. Corp., supra.
Indeed the argument of multiplicity, with others, was expressly advanced and rejected in the Waterman case, as ground for not applying the Myers rule and for sustaining declaratory and equitable intervention to circumvent it. After noting the company’s claim, with others, that “it would be subjected to a multiplicity of suits in order to recover the money due on the contracts,” we there said: “Even if one or all of these things might possibly occur in the future, that possibility does not affect the application of the rule requiring exhaustion of administrative remedies. The District Court had no power to determine in this proceeding and at this time issues that might arise because of these future contingencies.” 327 U. S. at 545.
This case is perhaps even stronger than the Waterman case for application of the Myers rule. For here the appellant is a subcontractor retaining what the contractor complainant did not have in the Waterman case, namely, a completely adequate remedy at law against its customers, buttressed by the Government’s guaranty of indemnity to the contractor for all liability incurred by him on account of withholding funds allegedly due the appellant.
In view of that fact the further one that constitutional issues are included among those tendered in this case but were not presented in the Waterman case, becomes wholly immaterial. To countenance short-circuiting of the Tax Court proceedings here would be, under all the circumstances but more especially in view of Congress’ policy and command with respect to those proceedings, a long overreaching of equity’s strong arm.
The judgment is
Affirmed.
Mr. Justice Jackson concurs in the result.
Mr. Justice Douglas dissents.
The First Renegotiation Act was contained in § 403 of the Sixth Supplemental National Defense Appropriation Act, 56 Stat. 226, as amended 56 Stat. 798, 982, 57 Stat. 347, 57 Stat. 564. The Second Renegotiation Act appears in the 1943 Revenue Act. 58 Stat. 21, 78, as amended 59 Stat. 294.
Of October 31, 1942, 56 Stat. 1013, 35 U. S. C. (Supp. V, 1946)
See note 1.
The War Contracts Price Adjustment Board is created by § 403 (d) (1) of the Second Renegotiation Act, 50 U. S. C. App. (Supp. V, 1946) § 1191 (d) (1). The present appellees were substituted by an order of the District Court as successors in office of the original defendants.
62 F. Supp. 520.
See note 9. The Tax Court proceedings remain pending and undetermined at the date of this decision.
On appellant’s application the District Court enjoined the defendants, pending determination of the appeal, from taking further action to enforce the statutes, particularly by notifying or requiring appellant’s customers to pay into the Treasury of the United States moneys alleged to be due Aircraft under contract provisions, but claimed by appellees to be payable to the Government as excessive profits pursuant to the Acts’ terms.. Cf. notes 10,13 infra.
The amended complaint alleges that appellant supplied materials to the Department of the Navy under one contract made directly between it and the Government. But it is also alleged that appellant has been paid in full for these supplies. Apparently, therefore, the contract and the relation which it created between appellant and the Government have no bearing upon the issues in this cause.
The First Renegotiation Act did not provide for redetermination by the Tax Court as originally enacted; nor did it specifically provide for review, by any body, of the determination of excessive profits. See Steadman, A Further Legal Inquiry Into Renegotiation: I (1944) 43 Mich. L. Rev. 1,12. But Tax Court redetermination was afforded by the Second Renegotiation Act and was made retroactive. 50 U. S. C. App. (Supp. V, 1946) § 1191 (e) (2) provides that it is available to “Any contractor or subcontractor... aggrieved by a determination of the Secretary made prior to the date of enactment of the Revenue Act of 1943, with respect to a fiscal year ending before July 1, 1943, as to the existence of excess profits....”
The original Act, as amended, provided: “Upon renegotiation, the Secretary is authorized and directed to eliminate any excessive profits under such contract or subcontract... (iii) by directing a contractor to withhold for the account of the United States, from amounts otherwise due to the subcontractor, any amount of such excessive profits under the subcontract....” 56 Stat. at 983. See also note 13.
An earlier petition was dismissed on motion of the United States because it was filed during the time when the War Contracts Price Adjustment Board might have initiated a review. Cf. Macauley
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_const1
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0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
BOSTON SAND & GRAVEL CO. v. UNITED STATES.
Circuit Court of Appeals, First Circuit.
July 7, 1925.
Rehearing Denied September 9, 1925.
No. 1826.
Collision <§=>102 — Destroyer, which had stopped in fog, and following lighter, both held in fault.
A steam lighter was following a destroyer-out of Boston Harbor in a fog. When the destroyer approached ' the gate in a submarine net, it was open, but appeared to be closed, and she stopped. The lighter, not seeing her until within a few feet in swinging aside, came into collision with her depth charge sponson, extending beyond her stern under water, and both vessels were injured. Held, that both were in fault; the lighter for not keeping such speed that she could stop after seeing the vessel ahead, and the destroyer for not keeping a proper lookout astern, knowing that the lighter was following.
Appeal from tbe District Court of the United States for the District of Massachusetts; Elisha H. Brewster, Judge.
Suit in admiralty for collision by the Boston Sand- & Gravel Company against the United States. Decree for the United States and libelant appeals.
Reversed and remanded.
For opinion below, see 298 F. 768.
Foye M. Murphy and Edward E. Blodgett,, both of Boston, Mass. (Blodgett, Jones, Burnham & Bingham, of Boston, Mass., on the brief), for appellant.
' Laurence Curtis, 2d, of Boston, Mass. (Harold P.. Williams, of Boston, Mass., on the brief), for the United States.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
BINGHAM, Circuit Judge.
This is an appeal from a decree of the federal District Court for Massachusetts in an admiralty proceeding brought by the Boston Sand & Gravel Company, the owner of the steamer Cornelia, against the United States, under a special act of Congress approved May 15, 1922 (42 Stat. 1590), to recover damages sustained by tbe Cornelia in collision with tbe destroyer Bell in tho dredged channel of Broad Sound at tbe entrance to Boston Harbor, August 9, 1918.
The court below entered a decree dismissing tbe bill, and the libelant appealed.
The Cornelia was a steam, sand lighter, 130 feet long and 39.5 foot beam. At the time of the collision she was proceeding light from Boston to Scituate, at about 4% knots, to obtain a cargo óf sand and gravel. There was a thick fog, restricting one’s view to from 50 to 75 yards. The Bell was 314 feet long and 31 feet .in width. Her bridge was 225 feet from beer stem, and she Was painted in camouflage eolors. .
On the morning in question both vessels were proceeding o-ut of the harbor, intending to go through the north channel. At that time, for war purposes, a steel submarine net, about 500 feet long, having a gate 100 feet wide, had. been stretched across this channel. Tbe gate swung on buoys at the left side of the channel as one passed out to sea. In the daytime it was kept open, being moored at right angles to tbe net. The net and gate wore submerged, but their location was marked by buoys. A vessel desiring to go out of the harbor was required to- receive permission from a station ship anchored off Deer Island Light, about a mile from the net.
As the vessels approached Deer Island Light, the Bell passed the Cornelia on her starboard side some 150 feet distant, and obtained permission to go through the not a few minutes before the Cornelia did. When tho Bell passed tho Cornelia, the fog had lifted somewhat, and each knew and appreciated that tho other was outward bound through the net, and tbe Bell was aware that the Cornelia was proceeding at a slightly slower speed than she was. When the Bell came within sight of the net the gate appeared to be closed, and her oiScors caused her engines to bo reversed. The Bell stopped, and remained so for two minutes, when her lookout on the bridge sighted the Cornelia. About three minutes elapsed from the time the net was sighted until the Cornelia was seen. She was first seen on the port quarter of tho Bell by the lookout on the port wing of tbe Bell’s bridge, who was stationed about 215 feet from her stem. Immediately on observing the Cornelia, the Bell signaled for standard speed ahead. Two men were stationed on the Bell’s fan tail, about 20 to 30 feet from her stem. It was undisputed that the duties of these men wore to attend to the depth charge and to look out for submarines. There was a dispute, however, whether they were to observe and report vessels generally. They made no such reporte that morning on the way out. Both vessels claim to have given tho proper fog signals, though neither hoard the other. On the stem of the Bell was a depth charge sponson extending out under the water some 15 or 20 feet.
When the Cornelia sighted the Bell, they were from 75 to 120 feet apart. She then ported and turned her bow to starboard, and in doing so struck the depth charge sponson, which cut her open and made it necessary to beach her. Tho sponson of the Bell was broken, and she received other damage.
The District Court found that the Bell was at rest at the time of the accident and was free from fault; that the Cornelia was at fault, apparently because she failed to so regulate her speed in the fog that she could stop after first seeing the Bell.
We think that the District Court erred in finding that the Bell was free from fault. There can bo no question that the Bell knew the Cornelia was following her out through the net only a short distance behind, that she knew the passage was a narrow one; and that in stopping in the fog as she approached tho gateway she was creating a dangerous situation, which called for special care and caution, particularly with reference to the Cornelia. Being aware of these facts, she failed to station any one at her stem to observe and report the approach of the Cornelia, or to instinct tho men on the fan tail (the depth bomb men) to observe and report the approach of the Cornelia. The evidence further showed that, had the Bell been 10 feet in advance of the position she was in at the time the Cornelia crossed her stem, no accident would have occurred.
It is therefore evident that time was of tho essence, and, had the approach of the Cornelia been reported to the Bell but a short time earlier, tbe accident would not have occurred. All the witnesses for the libelant testified that, had the Bell stationed a lookout at her stem, the Cornelia’s approach would have been sooner observed, and two of the officers of the Bell testified, that with a lookout the approach of the Cornelia would undoubtedly ba,ve been seen sooner than she was by the lookout on tbe bridge. We think the Boll was guilty of contributory fault. The damages to the vessels should be divided.
The decree of the District Court is reversed, and the ease is remanded to that court for further proceedings not inconsistent with this opinion, with costs to the appellant.
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:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
STANDARD OIL COMPANY OF NEW JERSEY v. UNITED STATES.
Nos. 27 and 28.
Argued October 13, 1950.
Decided November 27, 1950.
Edwin S. Murphy argued the cause for petitioner. With him on the brief was Ira A. Campbell.
Samuel D. Slade argued the cause for the United States. With him on the brief were Solicitor General Perlman and Assistant Attorney General Morison.
Mr. Justice Black
delivered the opinion of the Court.
These are admiralty proceedings involving the Government’s liability on a policy of war risk insurance by which it insured petitioner’s steam tanker John Worthington against “all consequences of hostilities or warlike operations.” Stipulated facts show that on December 16, 1942, there was a collision between the Worthington and the YMS-12, one of three United States Navy mine sweepers clearing the channel approaches to New York harbor. Both vessels were at fault in failing “to comply with the applicable rules” of good seamanship “under the circumstances.”
In the District Court the United States conceded that mine sweeping is a “warlike operation” but urged that the evidence failed to show that the collision was a “consequence” of the mine sweeping within the meaning of the insurance contract. Petitioner contended that the mere showing of loss from collision with the moving warship established liability under the policy as a matter of law. It argued that this was the English rule which should be followed by American courts. The District Court did not accept petitioner’s view of the English rule. It read both the American and English authorities as conditioning the underwriter’s liability on proof of facts showing that the “warlike operation” was the “proximate,” “predominant and determining” cause of the loss. The court held for petitioner, finding as a fact that this burden of proof had been met. 81 F. Supp. 183. The Court of Appeals reversed. 178 F. 2d 488. It recognized that some language in certain English opinions possibly indicated that the facts relied on would make the war underwriter liable as a matter of law. Nevertheless, it refused to go that far and, contrary to the District Court, found as a fact that petitioner’s evidence failed to show that the warlike phase of the mine sweeper’s operation had caused the collision. Petitioner sought certiorari here without relying on the divergence below in the findings of fact on the question of causation. Its- ground was that the Court of Appeals had failed to hold for petitioner as a matter of law as the English cases allegedly required. We granted the writ, 339 U. S. 977, because of asserted conflict on this one point with General Ins. Co. v. Link, 173 F. 2d 955.
We are asked only to determine whether as a matter of law the provision insuring against “all consequences of . . . warlike operations” covered the loss resulting from collision between the Worthington and the mine sweeper. Of course, the intention of the contracting parties would control this decision, but as is so often the case, that intention is not readily ascertainable. Losses from collisions are prima facie perils of the sea covered by standard marine risk policies. To take such a loss out of the marine policy and to bring it within the coverage of the provision insuring against “all consequences of” warlike operations, common sense dictates that there must be some causal relationship between the warlike operation and the collision. Courts have long so held in interpreting what was meant by use of the phrase “all consequences” in war risk policies. In turn, the existence or non-existence of causal connection between the peril insured against and the loss has been determined by looking to the factual situation in each case and applying the concept of “proximate cause.” Proximate cause in the insurance field has been variously defined. It has been said that proximate cause referred to the “cause nearest to the loss.” Again, courts have properly stated that proximate cause “does not necessarily refer to the cause nearest in point of time to the loss. But the true meaning of that maxim is, that it refers to that cause which is most nearly and essentially connected with the loss as its efficient cause.”
In view of the foregoing, can it be said that the Court of Appeals erred in failing to hold as a matter of law that the mine sweeping, a warlike operation, was the “predominant and determining” cause of the collision? As we read the record, the facts are susceptible both of the inference that the mine-sweeping activity of the YMS-12 had some relation to the collision and that it did not. That is to say, reasonable triers of fact considering all of the circumstances of this collision might differ as to whether the loss was predominantly or proximately caused by usual navigational hazards (and therefore an ordinary marine insurance risk) or whether it was caused by extraordinary perils stemming from the mine sweeping (and therefore a war insurance risk). Indeed, the District Court and the Court of Appeals did differ on this factual determination. Since certiorari was not granted to consider that divergence in the findings of fact, we need go no further than to hold that the courts below properly considered the case as depending on the resolution of factual questions.
Petitioner nevertheless contends that (1) we are bound by certain decisions in the House of Lords and (2) these opinions have announced a rule-of-thumb construction of the phrase “all consequences of . . . warlike operations” under which the facts in this case result in war risk liability as a matter of law. We cannot accept these arguments. It is true that we and other American courts have emphasized the desirability of uniformity in decisions here and in England in interpretation and enforcement of marine insurance contracts. Especially is uniformity desirable where, as here, the particular form of words employed originated in England. But this does not mean that American courts must follow House of Lords’ decisions automatically. Actually our practice is no more than to accord respect to established doctrines of English maritime law.
The difficulties inherent in the rigid conformity rule urged by petitioner are obvious to those familiar with the search for state decisional law under-the Erie-Tompkins doctrine. In this very case, we, like the Court of Appeals, cannot be sure what conclusion the House of Lords would reach were this case presented to it. Some of their decisions indicate that they would-have held as a matter of law that the collision was the “consequence” of the warlike operation; other cases cannot easily be reconciled with such a result. Indeed, in one decision, Lord Wright declared that “In many cases reconciliation is impossible. What matters is the decision.” And even in those decisions implying that proof of certain facts results in liability as a matter of law, the House of Lords has spoken in terms of factual proximate cause. Their most recent decision construing the words before us states that cases applying the “question of law” technique should be carefully restricted to their holdings; and Lord Normand warned, “The numerous authorities cited can therefore have only a limited bearing on the present issue. . . . [T]hey will easily lead to error if it is attempted to extract from them a principle of law to solve what .is a question of fact.”
This Court, moreover, has long emphasized that in interpreting insurance contracts reference should be made to considerations of business and insurance practices. The particular English cases relied on by petitioner produced such an unfavorable reaction among that country’s underwriters that they revised the clause here involved to avoid the injurious effects of those decisions. The terms of American war risk policies have also been altered.
The proximate cause method of determining on the facts of each case whether a loss was the "consequence” of warlike operations may fall short of achieving perfect results. For those insured and those insuring cannot predict with certainty what a trier of fact might decide is the predominant cause of loss. But neither could they predict with certainty what particular state of facts might cause a court to discover liability “as a matter of law.” Long experience with the proximate cause method in American and English courts has at least proven it adaptable and useful in marine and other insurance cases. There is no reason to believe that its application in this case will disappoint the just expectations of insurer or insured.
The judgment of the Court of Appeals is
Affirmed.
The quoted language comes from the “F. C. & S. Clause” (“Free from Capture and Seizure”) and is incorporated by reference in the war risk policy. War risk insurance is written in the following manner: the marine policy, which covers common perils of the sea, generally contains an “F. C. & S. Clause” eliminating from coverage certain named war risks, one of which is “all consequences of hostilities or warlike operations.” The excepted risks are insured against either by adding a rider to the original marine policy, or by buying coverage from another underwriter — here the Government — who insures the perils excluded by the “F. C. & S. Clause.” The opinions below set out more fully the documents on which the present insurance obligation rested. For a history of the development of the “F. C. & S. Clause” which originated in England, see 18 Halsbury’s Laws of England (2d ed. 1935) §439; Ionides v. Universal Marine Ins. Co., 14 C. B. (N. S.) 259, 273 (1863).
Counsel described the operation this way: “A mine sweeping operation ... is a formation of vessels, each of which streams out behind it a device on a long cable which, towed along a certain distance under the water, is designed to cut the cable of any mine and bring it to the surface, where it can be destroyed by gunfire and .the like.”
We do not read the Court of Appeals decision as meaning that when negligence is present, the resulting loss can never be a war risk. The District Court held (and the Court of Appeals approved) that “ ‘ “Proximate” here means, not latest in time, but predominant in efficiency.’ ‘[T]here is necessarily involved a process of selection from among the co-operating causes to find what is the proximate cause in the particular case.’ It is true that the causes of an event are all the preceding circumstances which brought the event to pass — and they are myriad.” 81 F. Supp. 190. If the “warlike operation” was the “proximate cause” of the collision, then the fact that the “warlike operation” was negligently conducted does not relieve the war risk underwriter of liability. Cf. General Mut. Ins. Co. v. Sherwood, 14 How. 351; 1 Phillips on Insurance (5th ed. 1867) ¶ 1049.
Cases collected, 1912 D Ann. Cases 1038, 1040; 2 Arnould, Marine Insurance and Average (13th ed., Lord Chorley, 1950), § 827a.
Ionides v. Universal Marine Ins. Co., 14 C. B. (N. S.) 259 (1863) ; see Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co., 263 U. S. 487, 491. 2 Arnould, Marine Insurance and Average (13th ed., Lord Chorley, 1950), §790.
Insurance Co. v. Boon, 95 U. S. 117; 3 Kent’s Commentaries (14th ed., Gould, 1896) 302; cases are collected in 6 Couch, Cyclopedia of Insurance Law, § 1463.
Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co., 263 U. S. 487, 492. Cf. Insurance Co. v. Transportation Co., 12 Wall. 194, 197-199.
Dole v. New England Mut. Ins. Co., 7 Fed. Cas. 837, 853 (C. C. Mass. 1864) decided by Mr. Justice Clifford on circuit. Accord: Insurance Co. v. Boon, 95 U. S. 117; Lanasa Fruit S. S. & Importing Co. v. Universal Ins. Co., 302 U. S. 556, 561-565; 3 Kent’s Commentaries (14th ed., Gould, 1896) 302, n. 1; 1 Phillips on Insurance (5th ed. 1867) ¶ 1132.
Ordinary marine insurance covers losses due to fortuitous perils of the sea. War risk insurance covers losses due to perils superimposed on usual marine perils by war. As Lord Wrenbury put it, “The question is whether the loss was occasioned by a new risk arising by reason of warlike operations.” Attorney-General v. Ard Coasters, Ltd., [1921] 2 A. C. 141, 154.
Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co., 263 U. S. 487, 493. See New York & Oriental S. S. Co. v. Automobile Ins. Co., 37 F. 2d 461, 463. The desire for uniformity in interpretation of the war risk clause may now be more academic than real. Since 1942, policies issued in England and in the United States have not contained similar provisions in this regard so that uniformity is no longer possible. Compare 1945 Am. Mar. Cas. 1035 with 1945 Am. Mar. Cas. 1036.
Aetna Ins. Co. v. United Fruit Co., 304 U. S. 430, 438.
E. g., Attorney-General v. Adelaide S. S. Co., [1923] A. C. 292; Board of Trade v. Hain S. S. Co., [1929] A. C. 534; cf. Yorkshire Dale S. S. Co. v. Minister of War Transport, [1942] A. C. 691.
E. g., Clan Line Steamers, Ltd. v. Board of Trade, [1929] A. C. 514; Liverpool & London War Risks Assn. v. Ocean S. S. Co., [1948] A. C. 243.
Yorkshire Dale S. S. Co. v. Minister of War Transport, [1942] A. C. 691, 708.
See cases-cited in note 12, supra. England has enacted the proximate cause test into its statutory law. Marine Insurance Act of 1906, 6 Edw. VII, c. 41, § 55 (2).
Liverpool & London War Risks Assn. v. Ocean S. S. Co., [1948] A. C. 243, 270.
General Mut. Ins. Co. v. Sherwood, 14 How. 351, 362.
2 Arnould, Marine Insurance and Average (13th ed., Lord Chorley, 1950), § 905h.
See note 10, supra.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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sc_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.
DEPARTMENT OF HOMELAND SECURITY, Petitioner
v.
Robert J. MACLEAN.
No. 13-894.
Supreme Court of the United States
Argued Nov. 4, 2014.
Decided Jan. 21, 2015.
Ian H. Gershengorn, for Petitioner.
Neal K. Katyal, Washington, DC, for Respondent.
Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for Petitioner.
Thomas Devine, Government Accountability Project, Washington, DC, Neal Kumar Katyal, Counsel of Record, Hagan Scotten, Elizabeth Austin Bonner, Hogan Lovells U.S. LLP, Washington, DC, for Respondents.
Stevan E. Bunnell, General Counsel, U.S. Department of Homeland Security, Washington, DC, Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Assistant Attorney General, Ian Heath Gershengorn, Deputy Solicitor General, Eric J. Feigin, Assistant to the Solicitor General, Douglas N. Letter, H. Thomas Byron III, Michael P. Goodman, Attorneys, Department of Justice, Washington, DC, for Petitioner.
Opinion
Chief Justice ROBERTSdelivered the opinion of the Court.
Federal law generally provides whistleblower protections to an employee who discloses information revealing "any violation of any law, rule, or regulation," or "a substantial and specific danger to public health or safety." 5 U.S.C. § 2302(b)(8)(A). An exception exists, however, for disclosures that are "specifically prohibited by law." Ibid.Here, a federal air marshal publicly disclosed that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain long-distance flights. The question presented is whether that disclosure was "specifically prohibited by law."
I
A
In 2002, Congress enacted the Homeland Security Act, 116 Stat. 2135. As relevant here, that Act provides that the TSA "shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security... if the Under Secretary decides that disclosing the information would... be detrimental to the security of transportation." 49 U.S.C. § 114(r)(1)(C).
Around the same time, the TSA promulgated regulations prohibiting the unauthorized disclosure of what it called "sensitive security information." See 67 Fed.Reg. 8351 (2002). The regulations described 18 categories of sensitive security information, including "[s]pecific details of aviation security measures... [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations." 49 CFR § 1520.7(j) (2002). Sensitive security information is not classified, so the TSA can share it with individuals who do not have a security clearance, such as airport employees. Compare Exec. Order 13526, § 4.1, 3 CFR 298, 314-315 (2009 Comp.), with 49 CFR § 1520.11(c) (2013).
B
Robert J. MacLean became a federal air marshal for the TSA in 2001. In that role, MacLean was assigned to protect passenger flights from potential hijackings. See 49 U.S.C. § 44917(a).
On July 26, 2003, the Department of Homeland Security (DHS) issued a confidential advisory about a potential hijacking plot. The advisory said that members of the terrorist group al Qaeda were planning to attack passenger flights, and that they "considered suicide hijackings and bombings as the most promising methods to destroy aircraft in flight, as well as to strike ground targets." App. 16. The advisory identified a number of potential targets, including the United Kingdom, Italy, Australia, and the east coast of the United States. Finally, the advisory warned that at least one of the attacks "could be executed by the end of the summer 2003." Ibid.
The TSA soon summoned all air marshals (including MacLean) for face-to-face briefings about the hijacking plot. During MacLean's briefing, a TSA official told him that the hijackers were planning to "smuggle weapons in camera equipment or children's toys through foreign security," and then "fly into the United States... into an airport that didn't require them to be screened." Id.,at 92. The hijackers would then board U.S. flights, "overpower the crew or the Air Marshals and... fly the planes into East Coast targets." Id.,at 93.
A few days after the briefing, MacLean received from the TSA a text message cancelling all overnight missions from Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous. He also believed that the cancellations were illegal, given that federal law required the TSA to put an air marshal on every flight that "present[s] high security risks," 49 U.S.C. § 44917(a)(2), and provided that "nonstop, long distance flights, such as those targeted on September 11, 2001, should be a priority," § 44917(b). See App. 95, 99, 101.
MacLean therefore asked a supervisor why the TSA had canceled the missions. The supervisor responded that the TSA wanted "to save money on hotel costs because there was no more money in the budget." Id.,at 95. MacLean also called the DHS Inspector General's Office to report the cancellations. But a special agent in that office told him there was "nothing that could be done." Id.,at 97.
Unwilling to accept those responses, MacLean contacted an MSNBC reporter and told him about the canceled missions. In turn, the reporter published a story about the TSA's decision, titled "Air Marshals pulled from key flights." Id.,at 36. The story reported that air marshals would "no longer be covering cross-country or international flights" because the agency did not want them "to incur the expense of staying overnight in hotels." Ibid.The story also reported that the cancellations were "particularly disturbing to some" because they "coincide[d] with a new high-level hijacking threat issued by the Department of Homeland Security." Id.,at 37.
After MSNBC published the story, several Members of Congress criticized the cancellations. Within 24 hours, the TSA reversed its decision and put air marshals back on the flights. Id.,at 50.
At first, the TSA did not know that MacLean was the source of the disclosure. In September 2004, however, MacLean appeared on NBC Nightly News to criticize the TSA's dress code for air marshals, which he believed made them too easy to identify. Although MacLean appeared in disguise, several co-workers recognized his voice, and the TSA began investigating the appearance. During that investigation, MacLean admitted that he had disclosed the text message back in 2003. Consequently, in April 2006, the TSA fired MacLean for disclosing sensitive security information without authorization.
MacLean challenged his firing before the Merit Systems Protection Board, arguing in relevant part that his disclosure was protected whistleblowing activity under 5 U.S.C. § 2302(b)(8)(A). The Board held that MacLean did not qualify for protection under that statute, however, because his disclosure was "specifically prohibited by law." 116 M.S.P.R. 562, 569-572 (2011).
The Court of Appeals for the Federal Circuit vacated the Board's decision. 714 F.3d 1301 (2013). The parties had agreed that, in order for MacLean's disclosure to be "specifically prohibited by law," it must have been "prohibited by a statute rather than by a regulation." Id.,at 1308(emphasis added). Thus, the issue before the court was whether the statute authorizing the TSA's regulations-now codified at 49 U.S.C. § 114(r)(1)-"specifically prohibited" MacLean's disclosure. 714 F.3d, at 1308.
The court first held that Section 114(r)(1)was not a prohibition. The statute did "not expressly prohibit employee disclosures," the court explained, but instead empowered the TSA to "prescribe regulations prohibiting disclosure[s]" if the TSA decided that disclosing the information would harm public safety. Id.,at 1309. The court therefore concluded that MacLean's disclosure was prohibited by a regulation, which the parties had agreed could not be a "law" under Section 2302(b)(8)(A). Ibid.
The court then held that, even if Section 114(r)(1)were a prohibition, it was not "sufficiently specific." Ibid.The court explained that a law is sufficiently specific only if it "requires that matters be withheld from the public as to leave no discretion on the issue, or... establishes particular criteria for withholding or refers to particular types of matters to be withheld." Ibid.(quoting S.Rep. No. 95-969(1978), 1978 U.S.C.C.A.N. 2723). And Section 114(r)(1)did not meet that test because it "provide[d] only general criteria for withholding information and [gave] some discretion to the [TSA] to fashion regulations for prohibiting disclosure." 714 F.3d, at 1309. The court accordingly vacated the Board's decision and remanded for a determination of whether MacLean's disclosure met the other requirements under Section 2302(b)(8)(A). Id.,at 1310-1311.
We granted certiorari. 572 U.S. ----, 134 S.Ct. 2290, 189 L.Ed.2d 172 (2014).
II
Section 2302(b)(8)provides, in relevant part, that a federal agency may not take
"a personnel action with respect to any employee or applicant for employment because of
"(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences
"(i) any violation of any law, rule, or regulation, or
"(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,
"if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs."
The Government argues that this whistleblower statute does not protect MacLean because his disclosure regarding the canceled missions was "specifically prohibited by law" in two ways. First, the Government argues that the disclosure was specifically prohibited by the TSA's regulations on sensitive security information: 49 CFR §§ 1520.5(a)-(b), 1520.7(j) (2003). Second, the Government argues that the disclosure was specifically prohibited by 49 U.S.C. § 114(r)(1), which authorized the TSA to promulgate those regulations. We address each argument in turn.
A
1
In 2003, the TSA's regulations prohibited the disclosure of "[s]pecific details of aviation security measures... [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations." 49 CFR § 1520.7(j). MacLean does not dispute before this Court that the TSA's regulations prohibited his disclosure regarding the canceled missions. Thus, the question here is whether a disclosure that is specifically prohibited by regulation is also "specifically prohibited by law" under Section 2302(b)(8)(A). (Emphasis added.)
The answer is no. Throughout Section 2302, Congress repeatedly used the phrase "law, rule, or regulation." For example, Section 2302(b)(1)(E)prohibits a federal agency from discriminating against an employee "on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation." For another example, Section 2302(b)(6)prohibits an agency from "grant[ing] any preference or advantage not authorized by law, rule, or regulation." And for a third example, Section 2302(b)(9)(A)prohibits an agency from retaliating against an employee for "the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation."
In contrast, Congress did not use the phrase "law, rule, or regulation" in the statutory language at issue here; it used the word "law" standing alone. That is significant because Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another.Russello v. United States,464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). Thus, Congress's choice to say "specifically prohibited by law" rather than "specifically prohibited by law, rule, or regulation" suggests that Congress meant to exclude rules and regulations.
The interpretive canon that Congress acts intentionally when it omits language included elsewhere applies with particular force here for two reasons. First, Congress used "law" and "law, rule, or regulation" in close proximity-indeed, in the same sentence. § 2302(b)(8)(A)(protecting the disclosure of "any violation of any law, rule, or regulation... if such disclosure is not specifically prohibited by law"). Second, Congress used the broader phrase "law, rule, or regulation" repeatedly-nine times in Section 2302alone. See §§ 2302(a)(2)(D)(i), (b)(1)(E), (b)(6), (b)(8)(A)(i), (b)(8)(B)(i), (b)(9)(A), (b)(12), (b)(13), (d)(5). Those two aspects of the whistleblower statute make Congress's choice to use the narrower word "law" seem quite deliberate.
We drew the same inference in Department of Treasury, IRS v. FLRA,494 U.S. 922, 110 S.Ct. 1623, 108 L.Ed.2d 914 (1990). There, the Government argued that the word "laws" in one section of the Civil Service Reform Act of 1978 meant the same thing as the phrase "law, rule, or regulation" in another section of the Act. Id.,at 931, 110 S.Ct. 1623. We rejected that argument as "simply contrary to any reasonable interpretation of the text." Id.,at 932, 110 S.Ct. 1623. Indeed, we held that a statute that referred to "laws" in one section and "law, rule, or regulation" in another "cannot, unless we abandon all pretense at precise communication, be deemed to mean the same thing in both places." Ibid.That inference is even more compelling here, because the statute refers to "law" and "law, rule, or regulation" in the same sentence, rather than several sections apart.
Another part of the statutory text points the same way. After creating an exception for disclosures "specifically prohibited by law," Section 2302(b)(8)(A)goes on to create a second exception for information "specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs." This exception is limited to action taken directly by the President. That suggests that the word "law" in the only other exception is limited to actions by Congress-after all, it would be unusual for the first exception to include action taken by executive agencies, when the second exception requires action by the President himself.
In addition, a broad interpretation of the word "law" could defeat the purpose of the whistleblower statute. If "law" included agency rules and regulations, then an agency could insulate itself from the scope of Section 2302(b)(8)(A)merely by promulgating a regulation that "specifically prohibited" whistleblowing. But Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks. Thus, it is unlikely that Congress meant to include rules and regulations within the word "law."
2
The Government admits that some regulations fall outside the word "law" as used in Section 2302(b)(8)(A). But, the Government says, that does not mean that allregulations are excluded. The Government suggests two interpretations that would distinguish "law" from "law, rule, or regulation," but would still allow the word "law" to subsume the TSA's regulations on sensitive security information.
First, the Government argues that the word "law" includes all regulations that have the "force and effect of law" (i.e.,legislative regulations), while excluding those that do not (e.g.,interpretive rules). Brief for Petitioner 19-22. The Government bases this argument on our decision in Chrysler Corp. v. Brown,441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). There, we held that legislative regulations generally fall within the meaning of the word "law," and that it would take a "clear showing of contrary legislative intent" before we concluded otherwise. Id.,at 295-296, 99 S.Ct. 1705. Thus, because the TSA's regulations have the force and effect of law, the Government says that they should qualify as "law" under the statute.
The Government's description of Chrysleris accurate enough. But Congress's use of the word "law," in close connection with the phrase "law, rule, or regulation," provides the necessary "clear showing" that "law" does not include regulations. Indeed, using "law" and "law, rule, or regulation" in the same sentence would be a very obscure way of drawing the Government's nuanced distinction between different types of regulations. Had Congress wanted to draw that distinction, there were far easier and clearer ways to do so. For example, at the time Congress passed Section 2302(b)(8)(A), another federal statute defined the words "regulatory order" to include a "rule or regulation, if it has the force and effect of law." 7 U.S.C. § 450c(a) (1976 ed.). Likewise, another federal statute defined the words "State law" to include "all laws, decisions, rules, regulations, or other State action having the effect of law." 29 U.S.C. § 1144(c)(1) (1976 ed.). As those examples show, Congress knew how to distinguish between regulations that had the force and effect of law and those that did not, but chose not to do so in Section 2302(b)(8)(A).
Second, the Government argues that the word "law" includes at least those regulations that were "promulgated pursuant to an express congressional directive." Brief for Petitioner 21. Outside of this case, however, the Government was unable to find a single example of the word "law" being used in that way. Not a single dictionary definition, not a single statute, not a single case. The Government's interpretation happens to fit this case precisely, but it needs more than that to recommend it.
Although the Government argues here that the word "law" includes rules and regulations, it definitively rejected that argument in the Court of Appeals. For example, the Government's brief accepted that the word "law" meant "legislative enactment," and said that the "only dispute" was whether 49 U.S.C. § 114(r)(1)"serve[d] as that legislative enactment." Brief for Respondent in No. 11-3231 (CA Fed.), pp. 46-47. Then, at oral argument, a judge asked the Government's attorney the following question: "I thought I understood your brief to concede that [the word "law"] can't be a rule or regulation, it means statute. Am I wrong?" The Government's attorney responded: "You're not wrong your honor. I'll be as clear as I can. 'Specifically prohibited by law' here means statute." Oral Arg. Audio in No. 11-3231, at 22:42-23:03; see also id.,at 29:57-30:03 ("Now, as we've been discussing here, we're not saying here that [the word "law"] needs to encompass regulations. We're saying statute."). Those concessions reinforce our conclusion that the Government's proposed interpretations are unpersuasive.
In sum, when Congress used the phrase "specifically prohibited by law" instead of "specifically prohibited by law, rule, or regulation," it meant to exclude rules and regulations. We therefore hold that the TSA's regulations do not qualify as "law" for purposes of Section 2302(b)(8)(A).
B
We next consider whether MacLean's disclosure regarding the canceled missions was "specifically prohibited" by 49 U.S.C. § 114(r)(1)itself. As relevant here, that statute provides that the TSA "shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security... if the Under Secretary decides that disclosing the information would... be detrimental to the security of transportation." § 114(r)(1)(C).
This statute does not prohibit anything. On the contrary, it authorizessomething-it authorizes the Under Secretary to "prescribe regulations." Thus, by its terms Section 114(r)(1)did not prohibit the disclosure at issue here.
The Government responds that Section 114(r)(1)did prohibit MacLean's disclosure by imposing a "legislative mandate" on the TSA to promulgate regulations to that effect. See Brief for Petitioner 28, 33; see also post,at 2-3 (SOTOMAYOR, J., dissenting).
But the Government pushes the statute too far. Section 114(r)(1)says that the TSA shall prohibit disclosures only "if the Under Secretary decidesthat disclosing the information would... be detrimental to the security of transportation." § 114(r)(1)(C)(emphasis added). That language affords substantial discretion to the TSA in deciding whether to prohibit any particular disclosure.
The dissent tries to downplay the scope of that discretion, viewing it as the almost ministerial task of "identifyingwhether a particular piece of information falls within the scope of Congress' command." Post,at 3. But determining which documents meet the statutory standard of "detrimental to the security of transportation" requires the exercise of considerable judgment. For example, the Government says that Section 114(r)(1)requires the Under Secretary to prohibit disclosures like MacLean's. The Government also says, however, that the statute does not require the Under Secretary to prohibit an employee from disclosing that "federal air marshals will be absent from important flights, but declining to specify which flights." Reply Brief 23. That fine-grained distinction comes not from Section 114(r)(1)itself, but from the Under Secretary's exercise of discretion. It is the TSA's regulations-not the statute-that prohibited MacLean's disclosure. And as the dissent agrees, a regulation does not count as "law" under the whistleblower statute. See post,at 1.
The Government insists, however, that this grant of discretion does not make Section 114(r)(1)any less of a prohibition. In support, the Government relies on Administrator, FAA v. Robertson,422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975). That case involved the Freedom of Information Act (FOIA), which requires federal agencies to disclose information upon request unless, among other things, the information is "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). In Robertson,we held that the Federal Aviation Act of 1958 was one such statute, because it gave the Federal Aviation Administration (FAA) "a broad degree of discretion" in deciding whether to disclose or withhold information. 422 U.S., at 266, 95 S.Ct. 2140.
The Government tries to analogize that case to this one. In Robertson,the Government says, the FAA's discretion whether to disclose information did not preclude a finding that the information was "specifically exempted" from disclosure by statute. So too here, the Government says, the TSA's discretion whether to prohibit disclosure of information does not preclude a finding that the information is "specifically prohibited" from disclosure by Section 114(r)(1). See Brief for Petitioner 30.
This analogy fails. FOIA and Section 2302(b)(8)(A)differ in an important way: The provision of FOIA at issue involves information that is "exempted" from disclosure, while Section 2302(b)(8)(A)involves information that is "prohibited" from disclosure.
A statute that exempts information from mandatory disclosure may nonetheless give the agency discretion to release that exempt information to the public. In such a case, the agency's exercise of discretion has no effect on whether the information is "exempted from disclosure by statute"-it remains exempt whatever the agency chooses to do.
The situation is different when it comes to a statute giving an agency discretion to prohibit the disclosure of information. The information is not prohibited from disclosure by statuteregardless of what the agency does. It is the agency's exercise of discretion that determines whether there is a prohibition at all. Thus, when Section 114(r)(1)gave the TSA the discretion to prohibit the disclosure of information, the statute did not create a prohibition-it gave the TSA the power to create one. And because Section 114(r)(1)did not create a prohibition, MacLean's disclosure was not "prohibited by law" under Section 2302(b)(8)(A), but only by a regulation issued in the TSA's discretion.
In any event, Robertsonwas a case about FOIA, not Section 2302, and our analysis there depended on two FOIA-specific factors that are not present here. First, we examined the legislative history of FOIA and determined that Congress did not intend that statute to affect laws like the Federal Aviation Act. 422 U.S., at 263-265, 95 S.Ct. 2140. In particular, we noted that the Civil Aeronautics Board had expressed its view during congressional hearings that the Federal Aviation Act qualified as an exempting statute under FOIA, and that "no question was raised or challenge made" to the agency's view. Id.,at 264-265, 95 S.Ct. 2140. But that legislative history can have no effect on our analysis of Section 2302(b)(8)(A).
Second, we said that the Federal Aviation Act could fail to qualify as an exempting statute only if we read FOIA "as repealing by implication all existing statutes which restrict public access to specific Government records." Id.,at 265, 95 S.Ct. 2140(internal quotation marks omitted). Then, relying on the presumption that "repeals by implication are disfavored," we rejected that interpretation of FOIA. But the presumption against implied repeals has no relevance here. Saying that Section 114(r)(1)is not a prohibition under the whistleblower statute is not the same as saying that the whistleblower statute implicitly repealed Section 114(r)(1). On the contrary, Section 114(r)(1)remains in force by allowing the TSA to deny FOIA requests and prohibit employee disclosures that do not qualify for whistleblower protection under Section 2302(b)(8)(A).
Ultimately, FOIA and Section 2302(b)(8)(A)are different statutes-they have different language, different histories, and were enacted in different contexts. Our interpretation of one, therefore, has no impact whatsoever on our interpretation of the other.
III
Finally, the Government warns that providing whistleblower protection to individuals like MacLean would "gravely endanger public safety." Brief for Petitioner 38. That protection, the Government argues, would make the confidentiality of sensitive security information depend on the idiosyncratic judgment of each of the TSA's 60,000 employees. Id.,at 37. And those employees will "most likely lack access to all of the information that led the TSA to make particular security decisions." Id.,at 38. Thus, the Government says, we should conclude that Congress did not intend for Section 2302(b)(8)(A)to cover disclosures like MacLean's.
Those concerns are legitimate. But they are concerns that must be addressed by Congress or the President, rather than by this Court. Congress could, for example, amend Section 114(r)(1)so that the TSA's prohibitions on disclosure override the whistleblower protections in Section 2302(b)(8)(A)-just as those prohibitions currently override FOIA. See § 114(r)(1)(authorizing the TSA to prohibit disclosures "[n]otwithstanding section 552 of title 5"); see also 10 U.S.C. § 2640(h)("the Secretary of Defense may (notwithstanding any other provision of law) withhold from public disclosure safety-related information that is provided to the Secretary voluntarily by an air carrier for the purposes of this section"). Congress could also exempt the TSA from the requirements of Section 2302(b)(8)(A)entirely, as Congress has already done for the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office. See 5 U.S.C. § 2302(a)(2)(C)(ii)(I).
Likewise, the President could prohibit the disclosure of sensitive security information by Executive order. Indeed, the Government suggested at oral argument that the President could "entirely duplicate" the regulations that the TSA has issued under Section 114(r)(1). Tr. of Oral Arg. 16-20. Such an action would undoubtedly create an exception to the whistleblower protections found in Section 2302(b)(8)(A).
Although Congress and the President each has the power to address the Government's concerns, neither has done so. It is not our role to do so for them.
The judgment of the United States Court of Appeals for the Federal Circuit is
Affirmed.
Justice SOTOMAYOR, with whom Justice KENNEDYjoins, dissenting.
I agree with much of the Court's opinion. I have no qualms with the Court's conclusion that the phrase "specifically prohibited by law," as used in the Whistleblower Protection Act of 1989(WPA), 5 U.S.C. § 2302(b)(8)(A), does not encompass disclosures prohibited only by regulation. See ante,at 919. Nor do I see any problem in the distinction the Court draws between statutes that prohibitinformation from being disclosed, the violation of which may preclude application of the WPA, and statutes that simply exemptinformation from otherwise-applicable disclosure requirements, which do not trigger the WPA's "prohibited by law" exception. See ante,at 922 - 923.
I part ways with the Court, however, when it concludes that 49 U.S.C. § 114(r)(1)does not itself prohibit the type of disclosure at issue here-the release of information regarding the absence of federal air marshals on overnight flights. Ante,at 921 - 922. That statute provides, in relevant part, that the Transportation Security Administration (TSA) "shallprescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security... if the Under Secretary decides that disclosing the information would... be detrimental to the security of transportation." § 114(r)(1)(emphasis added).
The Court reasons, first, that Section 114(r)(1)does not "prohibit anything," but instead simply "authorizes" the TSA to prescribe regulations. Ante,at 921 - 922. But this contention overlooks the statute's use of the word "shall," which, as we have observed, "generally means'must.' " Gutierrez de Martinez v. Lamagno,515 U.S. 417, 432, n. 9, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995); see also, e.g.,Federal Express Corp. v. Holowecki,552 U.S. 389, 400, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008)("Congress' use of the term'shall' indicates an intent to 'impose discretionless obligations' ") (some internal quotation marks omitted); A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 114 (2012) ("[W]hen the word shallcan reasonably read as mandatory, it ought to be so read"). Section 114(r)(1)does not merely authorizethe TSA to promulgate regulations; it directs it to do so, and describes what those regulations must accomplish.
The Court focuses, second, on the fact that Section 114(r)authorizes the TSA to " 'decid[e]' " whether the disclosure of a particular item of information would in fact be " 'detrimental to the security of transportation.' " Ante,at 921 (emphasis deleted). I certainly agree that this language vests some discretion in the agency.But the agency is required to prevent the disclosure of any information it determines is within Congress' prohibition; its discretion pertains only to identifyingwhether a particular piece of information falls within the scope of Congress' command. In concluding that such residual agency discretion deprives Section 114(r)of prohibitory effect, the Court overlooks the degree of agency involvement that is necessary in the administration of many antidisclosure statutes. Congress cannot be expected to identify with particularity each individual document or datum the release of which it wants to preclude. Often, it will have to leave to an agency or other enforcing authority the tasks of defining-perhaps through regulations-exactly what type of information falls within the scope of the congressional prohibition, and of determining whether a particular item of information fits the bill. The enforcing authority may, as the Court puts it, sometimes be required to make some "fine-grained distinction[s]" in fulfilling this charge, ante,at 922, but that does not change the fact that Congress itself is the source of the prohibition on disclosure.
Indeed, Congress appears to have anticipated the need for agency involvement in the interpretation and enforcement of antidisclosure statutes at the time it enacted the WPA. The Senate Report to the WPA identified only two statutes the violation of which would preclude whistleblower protection, the first being Section 102(d)(3) of the National Security Act of 1947, 61 Stat. 498, which provided that "the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure." See S.Rep. No. 95-969, pp. 21-22(1978), 1978 U.S.C.C.A.N. 2723. This example clearly suggests Congress contemplated that a statute directing an agency to protect against disclosures and delegating substantial authority to the agency should nevertheless be deemed to impose the relevant prohibition. Section 114(r)(1)'s delegation to the TSA to "decide" whether the release of particular information would be "detrimental to the security of transportation" likewise simply reflects Congress' recognition of the inevitable fact that the agency will be tasked, in the first instance, with enforcing its statutory mandate.
In sum, with Section 114(r)(1), Congress has required agency action that would preclude the release of information "detrimental to the security of transportation." In so doing, Congress has expressed its clear intent to prohibit such disclosures. I would respect its intent, and hold that a disclosure contravening that mandate is "prohibited by law" within the meaning of
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
sc_issuearea
|
I
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
UNITED STATES v. URBUTEIT.
No. 640.
Decided May 2, 1949.
Solicitor General Perlman for the United States.
H. O. Pemberton for respondent.
Per Curiam.
The question presented by this petition is whether the Court of Appeals followed our mandate on remand of the cause in 335 U. S. 355.
The case when it was here earlier this Term appeared in the following posture:
A condemnation proceeding was instituted by the United States under the Federal Food, Drug, and Cosmetic Act (52 Stat. 1040, 1044, 21 U. S. C. § 334). Sixteen machines with alleged diagnostic and curative capabilities had been shipped in interstate commerce. Leaflets describing the uses of the machine had been shipped at a separate time. The Court of Appeals had held that the separate shipments of the machines and leaflets precluded a conclusion that the leaflets had accompanied the device in interstate commerce, and therefore the transaction was outside the reach of the Act. We reversed the Court of Appeals and held that the separate shipment of the machines and leaflets constituted a single interrelated activity.
On remand the Court of Appeals concluded that because there were several shipments of machines and a single shipment of advertising matter, it was not clear which shipments might be considered a single interrelated activity. Therefore, it remanded the case to the District Court for a determination of this fact. 172 F. 2d 386.
When the case was here before, we decided that the fact of separate shipments of machines and leaflets was immaterial. The controlling factors were whether the leaflets were designed for use with the machine and whether they were so used. Since the function of the leaflets and the purpose of their shipment were established, nothing more was needed to show that the movements of the machines and leaflets constituted a single interrelated activity. Moreover, the case is not complicated by shipments of machines and leaflets to different persons. One Kelsch was the recipient of both.
On remand the Court of Appeals adhered to its former ruling that the District Court erroneously excluded evidence as to the therapeutic or curative value of the machines. When the case was here before we did not disturb that ruling. But we did leave to the Court of Appeals for consideration a further question — whether the evidence as respects the falsity of the representations regarding the diagnostic capabilities of the machines was adequate to sustain the condemnation even though error in exclusion of the other evidence were conceded. The United States is entitled to a hearing on that question.
The petition for certiorari is granted and the judgment is
Reversed.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
sc_petitioner
|
027
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
UNITED STATES v. SPEERS, TRUSTEE IN BANKRUPTCY.
No. 17.
Argued October 20, 1965.
Decided December 13, 1965.
Acting Assistant Attorney General Roberts argued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Oberdorfer and 7. Henry Kutz.
Robert B. Gosline argued the cause and filed a brief for respondent.
Mr. Justice Fortas
delivered the opinion of the Court.
This case presents the question whether a federal tax lien, unrecorded as of the time of bankruptcy, is valid as against the trustee in bankruptcy.
On June 3, 1960, a District Director of Internal Revenue assessed more than $14,000 in withholding taxes and interest against the Kurtz Roofing Company. Demand for payment was made, and the taxpayer refused to pay. This gave rise to a federal tax lien. Notice of the lien was not filed either in the Office of the Recorder of Erie County, Ohio, where Kurtz had its principal place of business, or in the United States District Court, at least not before February of 1961. On June 20, 1960, Kurtz filed a petition in bankruptcy. In the ensuing proceedings the trustee took the position that the federal tax lien was invalid as to him. He relied upon § 70c of the Bankruptcy Act, 11 U. S. C. § 110 (c) (1964 ed.), which, he asserted, vested in him the rights of a “judgment creditor,” and upon 26 U. S. C. § 6323 (1964 ed.), which entitles a “judgment creditor” to prevail over an unrecorded federal tax lien. Section 70c provides in part:
“The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.”
Section 6323 provides in part:
“[T]he lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the Secretary or his delegate
The trustee’s position, in short, was that his statutory lien attached to all property of the bankrupt as of the date of filing of the petition; that he was a statutory “judgment creditor”; and that, under § 6323, the unrecorded tax lien of the United States was not valid against him. This position, if sustained, would reduce the Government’s claim for unpaid taxes to the status of an unsecured claim, sharing fourth-class priority with unsecured state and local tax claims under § 64a (4) of the Bankruptcy Act, 11 U. S. C. §104 (a) (4) (1964 ed.), and ranking behind administrative expenses, certain wage claims, and specified creditors’ expenses. The result in the present case is that instead of recovering the full amount owing to it, the United States would receive only 53.48%.
The trustee’s position was affirmed by the referee, the District Court, and the Court of Appeals for the Sixth Circuit. 335 F. 2d 311. Certiorari was granted, 379 U. S. 958, to resolve the conceded conflict between decisions of Courts of Appeals for the Second, Third, and Ninth Circuits and the decision below. We affirm.
Despite the language of the applicable statutory provisions, § 70c and § 6323, most of the Courts of Appeals passing on the question have sustained the validity of an unrecorded federal tax lien as against the trustee in bankruptcy. They have arrived at this result on the authority of a statement in United States v. Gilbert Associates, Inc., 345 U. S. 361, 364, that the phrase “judgment creditor” in § 3672, the predecessor of § 6323, was used by Congress “in the usual, conventional sense of a judgment of a court of record....”
It is clear, however, that this characterization was not intended to exclude a trustee in bankruptcy from the scope of the phrase “judgment creditor.” The issue before the Court in Gilbert was quite different.
Gilbert involved neither a bankruptcy proceeding nor the rights of a trustee in bankruptcy. Gilbert arose out of a state insolvency proceeding. The issue was whether an unrecorded federal tax lien was valid as against a municipal tax assessment which had neither been reduced to judgment nor accorded “judgment creditor” status by any statute. The asserted superior position of the local tax claim was based upon the fact that the New Hampshire court, in the Gilbert insolvency proceeding, had, for the first time, conveniently characterized the local tax claim as “in the nature of a judgment,” relying upon the procedures used by the taxing authorities. Because the effect of federal tax liens should not be determined by the diverse rules of the various States, the Court held that the municipality was not a “judgment creditor” for purposes of the federal statute. The Court said:
“A cardinal principle of Congress in its tax scheme is uniformity, as far as may be. Therefore, a ‘judgment creditor’ should have the same application in all the states. In this instance, we think Congress used the words ‘judgment creditor’ in § 3672 in the usual, conventional sense of a judgment of a court of record, since all states have such courts. We do not think Congress had in mind the action of taxing authorities who may be acting judicially as in New Hampshire and some other states, where the end result is something ‘in the nature of a judgment,’ while in other states the taxing authorities act quasi-judicially and are considered administrative bodies.” (Footnotes omitted.) 345 U. S., at 364.
In view of the nature of the claim for which superiority was asserted and because its dominant theme was the need for uniformity in construing the meaning of § 3672, Gilbert cannot be considered as governing the entirely different situation with respect to the rights conferred by Congress upon a trustee in bankruptcy. In the latter circumstance we are confronted with a specific congressional Act defining the status of the trustee. We have no problem of evaluating widely differing state laws. We have no possibility of unequal application of the federal tax laws, depending upon variances in the terms and phraseology of different state and local tax assessment statutes and judicial rulings thereon. Here-we are faced with a uniform federal scheme — the rights of the trustee in bankruptcy in light of an unequivocal statement by Congress that he shall have “all” the rights of a judicial lien creditor with respect to the bankrupt’s property.
The legislative history lends support to the conclusion drawn from the statutory language that the purpose of Congress was to invalidate an unrecorded federal tax lien as against the trustee in bankruptcy. It was in 1910 that Congress enacted the predecessor of § 70c, vesting the trustee “with all the rights, remedies, and powers of a judgment creditor.” Three years later, in 1913, Congress enacted the predecessor of § 6323, providing that an unrecorded federal tax lien was invalid as against a “judgment creditor.” These two statutes, with their corresponding references to “judgment creditor,” co-existed for nearly 40 years. During that period, and prior to our decision in Gilbert in 1953, the only Court of Appeals squarely to pass upon the question decided that the trustee was a “judgment creditor” for purposes of avoiding an unrecorded federal tax lien. United States v. Sands, 174 F. 2d 384, 385 (C. A. 2d Cir.), rejecting contrary dictum in In re Taylorcraft Aviation Corp., 168 F. 2d 808, 810 (C. A. 6th Cir.).
In amending the Bankruptcy Act in 1950, Congress deleted from § 70c the phrase “judgment creditor,” providing instead that whether or not the bankrupt’s property was in possession or control of the court, the trustee was to have “all the rights, remedies, and powers” of a creditor holding a judicial lien.’ Elsewhere in the same legislation it was recognized that the category of those holding judicial liens includes judgment creditors/ and a judicial lien holder generally has “greater rights than a judgment creditor.” It is clear, therefore, that, with respect to the present problem, it was not the purpose of the 1950 amendments to reduce the powers of the trustee. As the House report accompanying the legislation noted, the revision of § 70c “has been placed in the bill for the protection of trustees in bankruptcy... also to simplify, and to some extent expand, the general expression of the rights of trustees in bankruptcy.”
In 1954 Congress dealt explicitly with the question whether the trustee ought to prevail against unrecorded federal tax liens. An unsuccessful effort was made, reflected in the House version of the proposed § 6323, expressly to exclude “artificial” judgment creditors like the trustee in bankruptcy. At conference, the House conferees acceded to the views of the Senate, which deemed it “advisable to continue to rely upon judicial interpretation of existing law instead of attempting to prescribe specific statutory rules.” The Government suggests that the “existing law” sought to be preserved was this Court’s decision in Gilbert. But as of the date of the 1954 amendments, Gilbert had not yet been applied by any court to displace the rights of the trustee in bankruptcy as against an unrecorded federal tax lien. So far as that- issue is concerned, it is more likely that reference to “existing law” was to the specific and then unchallenged rule announced by the Second Circuit in United States v. Sands, supra, and by other courts in other cases holding the trustee to have the rights of a judgment creditor. As we have already noted, Gilbert is not inconsistent with the rule announced in Sands.
In recent years, and since the view began to spread that Gilbert compelled exclusion of the trustee from the benefits of § 6323, legislation has' been introduced expressly to reiterate the trustee’s power to upset unrecorded federal tax liens. Such legislation was proposed not to alter the statutory scheme, but to remove what was thought to be an erroneous gloss placed upon it by the courts. Thus, both Senate and House committee reports accompanying a recent bill, H. R. 394, 88th Cong., reflect the belief that those decisions upon which the Government now relies “would appear to be contrary to the legislative purpose which gave the trustee all the rights of an ideal judicial lien creditor.”
In light of these legislative materials — the adoption of the phrase “judgment creditor” in both statutes, the legislative broadening of § 70c in 1950, and the expressions of congressional discontent with recent decisions excluding the trustee from § 6323 — we are persuaded that, read together, § 6323 and § 70c entitle the trustee to prevail over unrecorded federal tax liens.
The Government seeks to ward off this result with the argument that so to read the statutes is to confer upon certain classes of creditors “windfalls” unwarranted by the equities of their situation. The question may, however, be stated less invidiously than the argument indicates: it is whether the Government, unlike other creditors, and contrary to the general policy against secret liens, should be given advantage of a lien which it has not recorded as of the date of bankruptcy. It is true that the consequence of depriving the United States of claimed priority for its secret lien is to improve the relative position of creditors — if there are any not already protected by § 6323 — whose security was obtained subsequent to the Government’s lien and who, once the federal lien is invalidated, have a prior claim to the secured assets. And our decision will enhance the possibility that there will be something in the bankrupt’s estate for those claimants whose priorities are higher than that afforded unsecured tax claims, as well as for state and local tax claims which share with the Federal Government the priority in § 64a (4), 11 U. S. C. §104 (a)(4). Whether this result is inadvisable need not detain us, for the question is one of policy which in our view has been decided by Congress in favor of the trustee. In any event, it is possible for the Government in cases which it deems appropriate, to avoid a result which it regards with unhappiness by promptly filing notice of its lien. Should experience indicate that in-elusion of the trustee within § 6323 is inadvisable, the fact will not be lost upon Congress.
The Government advances one last and quite novel argument predicated upon § 67b of the Bankruptcy Act, 11 U. S. C. § 107 (b) (1964 ed.), which provides:
“The provisions of section 60 of this Act to the contrary notwithstanding, statutory liens [including those] for taxes and debts owing to the United States or to any State or any subdivision thereof... may be valid against the trustee, even though arising or perfected while the debtor is insolvent and within four months prior to the filing of the petition.... Where by such laws such liens are required to be perfected and arise but are not perfected before bankruptcy, they may nevertheless be valid, if perfected within the time permitted by and in accordance with the requirements of such laws....”
The contention is that the lower court’s reading of § 70c and § 6323 cannot be correct, for it precludes the possibility which appears to be contemplated by § 67b — that a federal tax lien not perfected until after bankruptcy may nevertheless be “valid against the trustee.” We find no such inconsistency. The purpose of § 67b, insofar as tax claims are concerned, is to protect them from §60, 11 U. S. C. §96 (1964 ed.), which permits the trustee to avoid transfers made within four months of bankruptcy. Thus § 67b permits an otherwise inchoate federal tax claim to be “perfected” by assessment and demand within the four months prior to bankruptcy or afterwards. It does not nullify or purport to nullify the consequences which flow from the Government’s failure to file its perfected lien prior to the date when the trustee’s rights as a statutory judgment creditor attach — namely, on filing of the petition in bankruptcy. There is no indication in the language of § 67b, in the legislative history, or in decisions of any court, that the subsection was intended to affect the construction or application of § 6323. In any event, we should hesitate to read § 67b as relevant to the relationship between § 70c and § 6323, for Congress in the very legislation proposed to clarify the trustee’s rights under § 6323 did consider § 67b, and evidenced no awareness of interrelationship or of inconsistency.
Affirmed.
26 U. S. C. §6321 (1964 ed.) provides: “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.”
26 U. S. C. § 6322 (1964 ed.) provides: “Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed is satisfied or becomes unenforceable by reason of lapse of time.”
In its brief in the Court of Appeals the Government for the first time stated that notice of the lien was in fact filed with the Recorder on February 9, 1961. The statement in the referee’s certificate that notice of the lien was never filed was not controverted in the District Court and, as respondent contends, there is no proof of the February filing in the record.
See §§ 64a (1)-(3), 11 U. S. C. §§ 104 (a) (1)-(3) (1964 ed.). Secured creditors, including those whose security was obtained subsequent to creation of the Government’s lien, would have recourse to their security before any of the Bankruptcy Act priorities come into play. Goggin v. California Labor Div., 336 U. S. 118; City of Richmond v. Bird, 249 U. S. 174. Administrative expenses and wage claims precede all other statutory liens on personal property not accompanied by possession if not enforced by sale prior to bankruptcy. § 67c, 11 U. S. C. § 107 (c) (1964 ed.); Goggin, supra, 126-130.
See Brust v. Sturr, 237 F. 2d 135 (C. A. 2d Cir.); In re Fidelity Tube Corp., 278 F. 2d 776 (C. A. 3d Cir.) (Kalodner and Hastie, JJ., dissenting), cert. denied sub nom. Borough of East Newark v. United States, 364 U. S. 828; Simonson v. Granquist, 287 F. 2d 489 (C. A. 9th Cir.) (Hamley, J., expressing contrary views), rev’d on other grounds, 369 U. S. 38. See also United States v. England, 226 F. 2d 205 (C. A. 9th Cir.); In re Taylorcraft Aviation Corp., 168 F. 2d 808, 810 (C. A. 6th Cir.) (dictum).
345 U. S., at 363, quoting from Petition of Gilbert Associates, Inc., 97 N. H. 411, 414, 90 A. 2d 499, 502.
The Government's brief also emphasized this concern for uniformity in administration of the federal tax laws. See brief for petitioner in Gilbert, No. 440, 1952 Term, pp. 22-24, where the Government argued: “Congress did not intend to subordinate federal tax liens to local tax liens merely because by state statute or state court decisions the local tax assessments are for local purposes denominated ‘judgments’.... Moreover, in holding that under our ‘decisions’ and in ‘this jurisdiction’ the Town’s tax assessments are ‘judgments,’ the court below failed to give sufficient heed to the repeated declarations of this Court that the federal revenue laws should be interpreted ‘so as to give a uniform application to a nationwide scheme of taxation,’ and hence their provisions are not to be deemed subject to state law unless the language of the section involved, expresslj- or by nécessary implication, so requires.”
The Act of June 25, 1910, c. 412, 36 Stat. 840, § 8, provided in part: ‘‘such trustees, as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon; and also, as to all property not in the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied.”
Act of March 4, 1913, c. 166, 37 Stat. 1016.
Act of March 18, 1950, c. 70, §2, 64 Stat. 26, now 11 U. S. C. §110 (c) (1964 ed.). Prior to the amendment, § 70c characterized the trustee as a lien holder as to property in the court’s possession or control and as a “judgment creditor” as to property not so reduced to possession. See n. 7, supra; Lewis v. Manufacturers National Bank, 364 U. S. 603, 605-606.
Act of March 18, 1950, c. 70, § 1, 64 Stat. 25, now 11 U. S. C. §96 (a)(4) (1964 ed.). See 4 Collier, Bankruptcy ¶ 70.49, n. 3, at 1415 (1964 ed.).
See, e. g., H. R. Rep. No. 745, 86th Cong., 1st Sess., to accompany H. R. 7242, p. 10: “As a matter of general law the holder of a lien by legal proceedings has greater rights than a judgment creditor.... It would seem anomalous to allow judgment creditors to prevail over secret tax liens and to deny that- right to a judicial lien holder.”
H. R. Rep. No. 1293, 81st Cong., 1st Sess., to accompany S. 88, p. 7. That this was the tenor of the amendment is generally conceded. See, e. g., In re Fidelity Tube Corp., 278 F. 2d 776, 781, 786-787 (both majority and dissenting opinions); 4 Collier, op. cit. supra, at 1415; Seligson, Creditors’ Rights, 32 N. Y. U. L. Rev. 708, 710 (1957).
The proposed legislation was to make clear that “such protection is not extended to a judgment creditor who does not have a valid judgment obtained in a court of record and of competent jurisdiction” and that “particular persons shall not be treated as judgment creditors because State or Federal law artificially provides or concedes such persons rights or privileges of judgment creditors, or even designates them as such, when they have not actually ob-tamed a judgment in the conventional sense.” H. R. Rep. No. 1337, 83d Cong., 2d Sess., to accompany H. R. 8300, p. A407. See Treas. Reg. on Procedure and Administration (1954 Code) § 301.6323-1 (26 CFR §301.6323-1), incorporating the material rejected by the Eighty-third Congress.
. S. Rep. No. 1622, 83d Cong., 2d Sess., to accompany H. R. 8300, p. 575; H. R. Conf. Rep. No. 2543, 83d Cong., 2d Sess., to accompany H. R. 8300, p. 78.
. E. g., Sampsell v. Straub, 194 F. 2d 228, 231 (C. A. 9th Cir.), cert. denied, 343 U. S. 927; McKay v. Trusco Finance Co., 198 F. 2d 431, 433 (C. A. 5th Cir.); In re Lustron Corp., 184 F. 2d 789 (C. A. 7th Cir.), cert denied sub nom. Reconstruction Finance Corp. v. Lustron Corp., 340 U. S. 946.
. On two occasions the proposed legislation was approved by the appropriate
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_decuncon
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the court declared any statute or administrative action unconstitutional. Only explicit statements in the opinion that some provision is unconstitutional should be used. Procedural violations of the constitution in the courts below are not counted as judicial review (e.g., if the trial court threw out evidence obtained in a search and seizure because of a 4th Amendment violation, the action would not count as judicial review).
DALLAS RY. & TERMINAL CO. v. SULLIVAN.
No. 9190.
Circuit Court of Appeals, Fifth Circuit.
Jan. 6, 1940.
Rehearing Denied Feb. 7, 1940.
Allen Charlton, of Dallas, Tex., for appellant.
W. E. Johnson and W. L. Oliphant, both of Dallas, Tex., for appellee.
Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.
HUTCHESON, Circuit Judge.
The suit was for damages for personal injury. The claim was that plaintiff,-while riding a bicycle on a street in Dallas, was struck and seriously injured, as a result of the negligent operation of defendant’s bus. The defense was, (1) a denial of each and every of the grounds of negligence charged, and that any of them was the proximate cause of the collision; (2) an affirmative plea that plaintiff was himself contributorily negligent; and (3) that plaintiff changed the course of his bicycle just before the collision, without giving notice of his intention to do so, and thus himself caused the injury.
There was a verdict for plaintiff for $35,000, a suggestion of the court that the verdict was excessive to the amount of $17,500, a remittitur entered by the plaintiff, of that amount, and a judgment for $17,500. Defendant, appealing from this judgment, presents eight assignments of error. One and two, are to the failure’ of the trial court to define “new and independent cause.” Three, four and five, are to the failure to submit special issues. Six complains that the court did not, prior to the arguments to the jury, inform counsel of its 'proposed action upon the written requests for charges. Seven insists that the verdict manifested passion and prejudice and should rather have been set aside, than reduced. Eight assigns error on the argument.
Disposing of them in inverse order, we overrule as wholly without merit, assignment eight, complaining of the argument as to the bus driver’s inexperience in driving, as improper. No error can be charged to the court in respect of it, for at defendant’s request, and over appellee’s objection the court instructed the jury not to consider it. Cf. Maryland Casualty Co. v. Reid, 5 Cir., 76 F.2d 30. Likewise, with reference to the seventh assignment, it is not necessary for us to determine whether appellant is right in its contention, that the verdict for $35,000 was excessive, or appellee, that it was amply supported by the evidence. For, no claim is made, nor indeed, could any be, that the record does not amply support the verdict as reduced by remittitur.
Under these circumstances and in view of the fact appearing of record, that the case has been several times tried, we think it plain that in suggesting a remittitur and in entering judgment on it, there was no abuse, but rather a wise use of, judicial discretion, and that the seventh assignment must be overruled. .
The sixth assignment, “The court erred in not indicating prior to the beginning of the argument which of the special charges would be given,” proceeds we think, upon a misconception of the nature and operation of the rule and as to what the record shows. The rule is not designed to, it does not, make an affirmative showing, that the Judge did inform counsel, essential to the validity of a trial. It is designed to afford counsel an opportunity to know in advance of the argument, the guiding principles under which the argument should be made. It will be presumed in the absence of a showing to the contrary, that the rule was complied with, and that counsel did not begin his argument until sufficiently advised to enable him to properly conduct it. The record contains no contrary showing. All that there appears, is this. Mr. Charlton, for the defendant, submitted some special issues to the court, whereupon the jury was retired and a colloquy occurred between court and counsel, after which, there was an adjournment to the morning following. At that time, Mr. Ford, for defendant, asked, “Will your Honor give us an idea which one of the special charges your Honor .will give?” And the court replied, “I gave you that time last night.” No further request was made, no objection was raised, nothing was done to indicate that counsel was not fully satisfied. Certainly we cannot assume, in view of the plain language of Rule 51, Rules of Civil Procedure, for District Courts, 28 U.S.C.A. following section 723c, and this showing in the record, that defendant’s counsel were not fully advised of the court’s proposed action. Nor can we, in view of Rule 61, Rules of Civil Procedure and of Section 391, 28 U. S.C.A., assume on this record, that there was prejudicial error.
Appellant’s assignments, three to five, on the failure of the trial court to submit special issues to the jury, must be overruled. The case having been submitted on a general charge, and not, under Rule 49, on special issues, defendant may not complain that the special issues it requested were not submitted. Especially may it not do so, since it clearly appears that defendant knew, that the case was to be submitted on a general charge, and filed and had given several written requests for instructions, in connection with such a submission.
There remains for consideration, only the first two assignments upon the failure of the court to define “new and independent cause.” In view of the earnestness and vigor of appellant’s counsel, in pressing these assignments, we have carefully and painstakingly read all of the Texas Cases he cites, and many of the cases those cases cite, to determine, if we can, the rule in the Texas Courts, whether compliance with it required the giving of the instruction appellant contends for, and whether, if it did, the failure to give it can be assigned as error here. Confusing and confused, as the statement and application of the rule seem to us to be when the mass of conflicting decisions, as to what is a “new and independent cause,” as to when it appears in a case, and as to when it must be submitted as an issue, are read and examined, we think it clear, that if the Texas Rule applied here, there was no breach of it. Young v. Massey, 128 Tex. 638, 101 S.W.2d 809, 810. For, here as in-that case, “If the evidence on behalf of [the defendant] is to be believed, [plaintiff’s] bicycle slipped in some way, and he was thereby thrown under * * * the truck. If the evidence on behalf of [plaintiff] is to be believed, [he] was struck by the truck and knocked down. Such a record simply presents a question as to how the accident happened. There is no issue’ as to whether some separate and independent agency intervened.” But, if we are mistaken, as to the Texas Rule and its application to these facts, 'if this were a case tried in the State Courts, appellant still could not prevail. For the Texas Special Issue Statute, and the decisions under it as to the manner of submission of the issues of negligence and proximate cause, of “new and independent cause,” and of unavoidable accident, and all questions of preserving and assigning errors, and whether an error is harmless or reversible, are matters of procedure, and in regard to such matters, this court is governed by the rules of practice and procedure in the Federal Court rather than by those in the State Court.
Under Federal Rules, of practice and procedure, appellant’s assignments, one and two, must be overruled. First, because one complaining of the refusal to give a charge must be prepared to show that he requested it in writing, Indemnity Insurance Co. of North America Co. v. Moses, 5 Cir., 36 F.2d 219; Rule 51, Rules of Civil Procedure, and, appellant did not do this. His only written request embodying a definition of “new and independent cause,” was in connection with his request for special issues, which passed out of the case with its submission on a general charge. But, if we should waive its failure to file a written request, appellant, would fare no better. Its whole complaint on this score, in the light of the way its case was actually submitted, is mere dialectic. For, as was done, in the Texas case of Young v. Massey, supra, the District Judge, in submitting the issue of plaintiff’s turning into the bus, the issue around which appellant centers all its contentions for the charge on “new and independent cause,” avoided metaphysical disquisitions, and submitting it directly, submitted it far more favorably to the appellant, than if he had given a charge on the presence of the water in the street as a “new and independent cause.” In addition to fully charging the jury on the issues of plaintiff’s contributory negligence, under every aspect the evidence presented, he directly and flatly told the jury, “If the plaintiff turned toward the bus without making a signal or giving an intimation of his desire to go in that direction, and the operator of the bus had no knowledge of the determination of the bicycle rider to. turn to the left, manifestly, any collision that happened, could not be charged to the bus driver under circumstances of that sort.”
Dialectical perfection, metaphysical nicety, abstract inerrancy, are not expected or 'required of Federal trial courts. Maryland Casualty Co. v. Reid, supra. Both trial and appellate federal courts are enjoined. “On the hearing of any appeal, certiorari, writ of error, or motion for new trial, * * * the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.” Rule 61 of the Rules of Civil Procedure, provides, “Harmless Error —No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
We find the record without reversible error. The judgment is affirmed.
Affirmed.
Pointing out that; the evidence of Cooper’s inexperience came in without objection and his argument strictly followed the evidence, plaintiff insists that it was erroneously withdrawn from the jury’s consideration. Cf. Southwestern Bell Telephone Co. v. Ferris, Tex.Civ. App., 89 S.W.2d 229.
28 U.S.C.A. § 391.
Question: Did the court declare any statute or administrative action unconstitutional?
A. no declarations of unconstitutionality
B. act of Congress declared unconstitutional (facial invalidity)
C. interpretation/application of federal law invalid
D. federal administrative action or regulation unconstitutional on its face
E. interpretation/application of administrative regs unconstitutional
F. state constitution declared unconstitutional on its face
G. interpretation/application of state constitution unconstitutional
H. state law or regulation unconstitutional on its face
I. interpretation/application of state law/regulation unconstitutional
J. substate law or regulation unconstitutional on its face
K. interpretation/application of substate law/regulation unconstitutional
Answer:
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songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
NATIONAL GRAIN & FEED ASSOCIATION, INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION U.S. DEPARTMENT OF LABOR, Respondent.
No. 87-1603.
United States Court of Appeals, District of Columbia Circuit.
May 3, 1988.
Marc L. Fleischaker, Washington, D.C., for petitioner.
Allen H. Feldman, Associate Sol., with whom Steven J. Mandel, for Appellate Litigation and Nathaniel I. Spiller, Atty., U.S. Dept, of Labor, Washington, D.C., for respondent.
Before ROBINSON, SILBERMAN and WILLIAMS, Circuit Judges.
ON MOTION TO DISMISS
PER CURIAM:
This petition seeks review of the Occupational Safety and Health Administration’s (“OSHA”) final standard regulating hazard communication. 29 C.F.R. § 1910.1200. The standard was filed in the Office of the Federal Register on August 19, 1987, and was published on August 24, 1987. See 52 Fed.Reg. 31,852 (1987). OSHA has moved to dismiss the petition as untimely since it was filed on October 20, 1987, sixty-one days after the filing of the standard in the Office of the Federal Register.
Section 6(f) of the OSH Act, 29 U.S.C. § 655(f), provides that:
[a]ny person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard.
(Emphasis added). The government contends that the date of issuance is synonymous with the date of promulgation, and it relies on the following regulation:
A rule promulgating, modifying, or revoking a standard, or a determination that a rule should not be promulgated, shall be considered issued at the time when the rule or determination is officially filed in the Office of the Federal Register. The time of official filing in the Office of the Federal Register is established for the purpose of determining the prematurity, timeliness, or lateness of petitions for judicial review.
29 C.F.R. § 1911.18(d) (emphasis added).
The Second Circuit has issued a recent opinion on the issue of when an OSHA standard is promulgated for purposes of determining the timeliness of a petition for review. See United Technologies Corp. v. OSHA, 836 F.2d 52 (2d Cir.1987). In United Technologies, the court concluded that an OSHA standard is promulgated on the date of publication in the Federal Register. We agree, at least in the absence of a valid OSHA regulation fixing some other date.
Section 1911.18(d) was adopted in response to this court’s opinion in Industrial Union Dep’t, AFL-CIO v. Bingham, 570 F.2d 965 (D.C.Cir.1977). Industrial Union involved the issue of whether a petition for review is premature if it is filed before the challenged regulation is filed in the Office of the Federal Register. This court invited OSHA to issue regulations defining when a standard is “issued” for .purposes of marking the inception of the filing period as required by 29 U.S.C. § 655(f). Id. at 970-71, 976 n. 12. The resulting regulation, 29 C.F.R. § 1911.18(d), clarified when a standard is “issued,” not when it is “promulgated.”
OSHA may well have the power to equate the date of promulgation with the date of issuance, but it has not done so. It is clear from a reading of 29 U.S.C. § 655(f) that Congress intended to treat the date of issuance differently from the date of promulgation. Based on the plain meaning of 29 U.S.C. § 655(f), the ordinary usage of the term promulgate, and the lack of any specific agency regulation defining the date of promulgation, we conclude that an OSHA standard is promulgated on the date that it is published in the Federal Register. Accordingly, respondent’s motion to dismiss is hereby denied.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_usc1
|
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.
SHEARER v. ATLAS RADIO CO. et al.
No. 7288.
Circuit Court of Appeals, Sixth Circuit.
Jan. 10, 1938.
William L. Day, of Cleveland, Ohio (Day & Day, of Cleveland, Ohio, and L. G. Worstell, Jr., of Athens, Ohio, on the brief), for appellant.
Dexter N. Shaw, of Philadelphia, Pa. (John B. Hull, of Cleveland, Ohio, and Charles H. Howson, of Philadelphia, Pa., on the brief), for appellees.
Before MOORMAN and HICKS, Circuit Judges, and NEVIN, District Judge.
HICKS, Circuit Jiidge.
Suit by Ray Reginald Shearer, the patentee-owner, against Atlas Radio Company, a retail dealer in Cleveland, Ohio, and Philco Radio and Television Corporation, a sales company and distributor for Philco radios, for infringement of claim 1 of patent No. 1,917,554, issued July 11, 1933, for an “Article of Furniture.”
The claim is printed.
The chief defenses were noninvention, noninfringement, and anticipation. The court did not rule upon the issue of validity but considered the question of infringement, found there was none and dismissed the bill.
The patent relates to articles of furniture such as desks, highboys, etc., into which radio receiving sets and speaker units are incorporated. Early speakers were horn-shaped, the sound proceeding from the small end to the listener through the flared portion. But these horns had the weakness of producing dissonances.
To offset these undesirable tonal, qualities, a speaker diaphragm in the shape of a flattened cone was devised. Both the convex and concave side of the cone gave off sounds and as a result some of the lower frequency tones offset each other and could hardly be heard. In order to give strength to these “short circuited” tones, the cone was mounted on a “baffle” board which had the effect of delaying the meeting of the offsetting sounds from the two sides of the cone sufficiently that their depressing effect upon each other tended to be obviated. Rice (patent No. 1,631,646, June 7, 1927) worked out a formula for the size and placement of the baffle whereby the proper delay in the passage of sounds could be achieved.
But mounting the baffle board in a cabinet involved a tendency to compartmentalize the space on either side of it. It was then found that if the rear compartment was too tight the air compressed against the diaphragm cone at certain frequencies, preventing its free vibration and dampening certain tones. Other low frequency masculine tones reacted on the air in the compartment to produce a strong and displeasing resonant effect. For present purposes resonance may be defined as the enhanced response of a vibrating body to its own natural frequency.
To control resonance, Beers, six years later than Rice (patent No. 1,902,609, March 1, 1933), suggested leaving the cabinet substantially open at the rear, providing openings around the baffle, and between it and certain of the walls of the cabinet. His third claim read:
“ * * * said cabinet being substantially open at the back, said device being supported within the cabinet by said baffle, certain of the edges of said baffle extending only into proximity to the interior surfaces of certain of the walls of said cabinet, whereby said cabinet is prevented from accentuating said frequencies during actuation of said sound reproducing device.”
As early as 1929 and 1930 appellees’ licensor in perfecting its Model 302, and using a baffle board mounted flush with the front of the cabinet and thus forming a rear compartment, found that it could reduce resonance by boring large holes in the bottom wall of the compartment and later it was found that the bottom wall could be eliminated altogether. This model was mounted on legs, allowing the free passage of sound underneath.
So far we have dealt with the problem (1) of controlling the low frequency sounds produced by the two sides of the cone; and (2) of eliminating resonance in the rear compartment. It was found desirable not only to delay the passage of sounds from one side of the board to the other, but necessary to furnish them with some outlet ; otherwise resonance would result. The baffle board met the problem of delay and opening the compartment at the rear and underneath seems to have eliminated excess resonance.
There had been no particular problem of resonance in front of the baffle board, since it had been the prevalent practice to mount the board either flush with the cabinet front as in Model 302, or at the back of a very shallow opening front compartment, as in Beers and in Sprague (No. 1,875,171 — 1932).
Into this technical field appellant projected himself by accident. In locating a radio chassis in one of his furniture models he moved it back and forth in the space, which would accommodate the feet of one using the cabinet as a desk, and found a difference in tonal qualities at various .positions. His alleged discovery is embodied in claim 1.
The claim lacks precision. It cal-ls for a compartment “formed by four walls” and divided by one of them into “two sub-compartments.” This is meaningless. Obviously a compartment cannot be both formed and divided by the same wall. By reference to the specifications we find that the large compartment was composed of three walls only, the top and two sides, and that the fourth wall is a partition dividing it into two parts. The large compartment was the “box with the ends knocked out and the bottom knocked out” as described by appellant’s expert. The drawings and specifications indicate that appellant is making claim to a subcompartment in front of the baffle board, 'open at the front and to the floor.
Appellant’s patent was a paper patent. It was never sold nor used, although he brought it to the attention of radio manufacturers. His advance in the realm of audition was but a short one and consisted in the main of applying the same treatment to the space i-n front of the baffle board which had theretofore been applied to the space in its rear.
Assuming, without deciding, that the claim is valid, we think that it should be narrowly construed.
Appellees’ alleged infringing device is the 16X model. Literally, the claim in issue reads upon its construction, but appellant’s subcompartment is also specifically defined in the claim as “forming a resonance chamber” and we are not permitted to disregard this limitation. Lektophone Corporation v. Rola Co., 282 U.S. 168, 51 S.Ct. 93, 75 L.Ed. 274; D’Arcy Spring Co. v. Marshall Ventilated Mattress Co., 6 Cir., 259 F. 236, 240; Dillon Pulley Co. v. McEachran, 6 Cir., 69 F.2d 144, 146. We think that appellant regarded this “resonance chamber” as the principal feature of his invention. In his specification he states: “When the speaker soundboard 50 is located as above described, it divides the recess or compartment 30 into two sub-compartments, the front of which comprises a resonance chamber and the other. of which is adapted to receive the speaker unit. * * * Such a construction has been found to add a desirable resonant quality to the tone of the loud speaker, resulting in a more pleasing sound than where the speaker soundboard was mounted directly at the front of the cabinet, as has been customary in the past.” (Italics ours.)
The evidence tends to show that appellant’s front subcompartment was in fact a resonance chamber, but it fails to show by a fair preponderance that the front cavity or subcompartment of appellees’ Philco 16X was likewise a resonance chamber, and indeed, we think that the evidence shows that it was not. This alleged infringing model was manufactured under patent No. 1,866,603, July 12, 1932, to Schlenker for an acoustic device. Schlenker had a different type of diaphragm mounted on the usual baffle board. His patent disclosed a cavity in front of the board, wedge-shaped, in cross-section. The board was mounted an inch or so from the front of the cabinet and leaned back at an oblique angle to the floor, being secured along its edges to the walls on either side. The upper edge was perhaps six or seven inches from the front of the cabinet. In o support of the oblique-positioning of the board it was shown that since the tones proceed from the speaker at right angles to the baffle board when vertically mounted, and therefore parallel with the floor, they move in a plane lower than the ears of the listener in the ordinary living room, but, tilting the board backward allowed them to proceed upward at an angle and hence into the range of the listener’s ears.
The leaning baffle boards of Schlenker and of appellees’ Philco 16X model were not intended as any part of a front resonance chamber. They had to do only with the direction of sound waves. Appellant’s expert does not characterize the forward cavity in Philco 16X as a resonance chamber. Elaborate tests conducted by appellees’ experts, among them Schlenker himself, demonstrate rather clearly that the front cavity of the Philco 16X model had- no effective resonance. Its area and peculiar shape were not conducive to resonance. We concur therefore in the opinion of the District Judge that there was no infringement of the claim in issue.
Appellees’ model 16X rests directly upon the floor and appellees insist that the floor constitutes its bottom wall and that it is thus differentiated from appellant’s construction, which has an open bottom. We find no necessity for considering this contention.
The decree of the District Court is affirmed.
“1. A cabinet having a compartment for a speaker unit, said compartment being formed by four wails comprising a top wall, two side walls and a partition wall dividing said compartment into two sub-compartments by being connected 1» the top wall and the said side walla whereby one of said sub-compartments has only four walls including the partition wall and thus forming a resonance chamber and a speaker unit mounted in the other of said compartments, the speaker unit being arranged in said last named sub-compartment to entirely elose a large opening formed in said partition wall whereby the speaker unit will direct the sound produced thereby to said resonance chamber.”
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_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
CITIZENS’ BANK OF WARRENTON v. MOORE. AMERICAN TRUST CO. v. ALAMANCE RY. CO.
Circuit Court of Appeals, Fourth Circuit.
July 5, 1927.
No. 2618.
1. Equity <§=>409 — Master’s finding, though not binding on court, should not be disregarded, when in accordance with uncontradicted testimony.
Though findings of special master were not binding on District Court, they should not have been disregarded when in accordance with testimony which is not contradicted or impeached, and master had advantage of seeing and hearing witnesses.
2. Garnishment <§=>58 — One garnishing funds in custodia legis obtains no rights therein.
One garnishing funds which were in custodia legis could obtain no rights therein as result of garnishment.
3. Courts <§=351— Production of bank books may be compelled, and officers required to answer interrogatories (equity rules 58, 62).
Under federal equity practice, production of books of bank may be compelled, and officers of bank may be required to answer proper interrogatories under rules 58 and 62.
Appeal from the District Court of the United States for the Western District of North Carolina, at Greensboro; Edwin Y. Webb, Judge.
Receivership proceedings against the Alamance Railway Company, wherein the Citizens’ Bank of Warrenton intervened claiming part of proceeds of property sold held by American Trust Company subject to orders of court. From a judgment sustaining objections of Warner Moore, and disallowing claim, intervener appeals.
Remanded.
J. H. Bridgers, of Henderson, N. C., for appellant.
O. R. Cunningham and S. S. P. Patteson, both of Richmond, Va., for appellee.
Before WADDILL, PARKER, and NORTIICOTT, Circuit Judges.
PER CURIAM.
The Alamance Railway Company was placed in the hands of a receiver by the District Court for the Western District of North Carolina. Its property was sold, and a part of the proceeds thereof is held by the American Trust Company of Richmond, Va., subject to the orders of thfl court. The Citizens’ Bank of Warrenton intervened and claimed this fund, alleging that it was the pledgee of certain bonds of the railway company, to the payment of which ths fund in controversy should be applied. One Warner Moore contested the claim of the bank, claiming the fund for himself by virtue of a garnishment levied in an action against one Pasehall. The matter was referred to the standing master of the district, who heard the evidence and found in favor of the claim of the bank. Upon exceptions to his report, the District Judge reversed his findings and held that the bank had no rights in the fund.
The standing master found as a fact that the bonds in question were pledged to the Bank of Warrenton to secure an indebtedness of the witness Pasehall, and that some time later Pasehall secured possession of the bonds from the bank for the purpose of having an easement for a water lin'e indorsed on them. His conclusion was that the bank had not surrendered its rights in the bonds, but had merely allowed them to be taken out of its possession for a special purpose. The learned trial judge found that the bonds had never been pledged .with the bank, and on the record as presented to us we think that this finding was erroneous. It seems to have been based on the idea that Paschall’s testimony was not worthy of belief, and that the claim of the bank was not supported by oath of its officers in the form of affidavit or otherwise. The judge was mistaken, it seems, in assuming that the petition of the bank was not verified. The original petition was verified, but, through some mistake of the officer, the verified original, instead of a copy, was left with counsel of the opposite party. We cannot tell, of course, how much his conclusion may have been influenced by this error. As to the weight to be given to the testimony of Pasehall, while we agree with the view that the findings of the master were not binding on the court, we do not think that they should have been disregarded, where they were in accordance with testimony which had not been contradicted or impeached, and where the master had had the advantage of seeing and hearing the witnesses. The judge seems to think that Pasehall’s statement in the presence of Clader was a contradiction; but it is manifest that a statement that he owned the bonds is not necessarily inconsistent with his testimony that they had been pledged.
We do not think, however, that upon the record as presented we would be justified in rendering any decree in the ease. It does not sufficiently establish the amount of the debt due the bank, nor does it set forth the facts under which the bonds were delivered back to Pasehall with sufficient fullness to enable us to determine whether the bank surrendered its rights in them by that act, nor are the circumstances surrounding the delay in claiming the bonds or the fund in court derived from the sale of the railway set forth sufficiently to enable us to determine whether the bank has been guilty of such laches as would bar the assertion of its claim. Instead of deciding the ease, therefore, we shall remand it to the District Court, with direction that that court hear additional testimony and make a full finding of facts, allowing the parties to so amend their pleadings as may be proper to present fully the facts upon which they rely. If Warner Moore desires to claim the fund in controversy, he should file a petition setting forth the facts upon which his claim is grounded. As the fund is in custodia legis, it would seem reasonably clear that he obtained no rights therein as a result of the garnishment upon which he seems to rely. See 23 R. C. L. 68; note 71 Am. St. Rep. 372.
We call attention to the fact that, so far as we can gather from the very incomplete record before us, the fund in controversy does not represent the proceeds of the sale of bonds, as was assumed both by the master and the District Judge, but is a part of the proceeds of the railway sold by the receiver under'order of court, and before the holders of bonds should be held entitled to the fund it should appear that the bonds held by them were validly issued and held, and constituted a valid lien upon the property. We say this because Pasehall testified that the bonds were issued to “take up slack” in some of his financial arrangements. We do not know what was meant by the expression used; but, if the company did not receive value for the bonds, the court should inquire as to whether any person claiming them as pledgee or otherwise is entitled to the fund in controversy which should be distributed among the general creditors of the insolvent street railway, if the bonds do not constitute a valid lien upon its assets.
We call attention, also, to the fact that the .procedure applicable in the case is that appropriate to federal suits in equity. The state statute providing for the use of itemized verified statements of account, upon which the bank seems to rely, has no application. Under the federal equity practice there need be no trouble about the production of the books of the bank, as such production may be compelled, and the officers of the bank may be required to answer proper interrogatories, under equity rules 58 and 62.
We suggest, further, that in the future progress of the cause the American Trust Company of Richmond, if it has not already done so, appear and make the necessary defense, looking to the ascertainment of the rights of the parties in litigation, arising under the trust.
The cause will be remanded to the District Court for further proceedings in accordance with this opinion.
Remanded.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_const2
|
114
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Charles Andrew THROCKMORTON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, James Busey, Administrator Federal Aviation Administration, Respondents.
No. 91-1184.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 3, 1992.
Decided May 5, 1992.
Peter Axelrod, Tucson, Ariz., for petitioner.
Joseph A. Conte, Washington, D.C., for respondents.
Before EDWARDS, SILBERMAN and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LeCRAFT HENDERSON, Circuit Judge:
Charles Andrew Throckmorton petitions for review of an order of the National Transportation Safety Board (NTSB) suspending Throckmorton’s airline transport pilot certificate for ninety days. For the reasons set forth below, we deny the petition.
The essential facts underlying Throckmorton’s suspension are undisputed. On December 18, 1986, Throckmorton, an experienced licensed helicopter pilot, requested permission to make a “low pass” in his helicopter over the Colorado Springs, Colorado airport. Air Traffic Control (ATC) cleared him to pass over Runway 17, but instead he passed along a grassy strip between Taxiway Alpha and a civilian ramp, traveling at an altitude of 10-20 feet and a speed of approximately 150 m.p.h.
On October 9, 1987, the Federal Aviation Administration (FAA) issued an order suspending Throckmorton’s Airline Transport Pilot Certificate for ninety days, effective October 28, 1987, based on the foregoing facts and on the additional allegation that in making the pass Throckmorton “flew within close proximity to a Continental Airlines DC-9, an American Airlines B-727, and a Cessna 182 that were operating on the taxiway and ramp.” The order charged Throckmorton with violating four Federal Aviation Regulations then in effect: 91.75(a) (requiring compliance with an ATC clearance), 91.65(a) (prohibiting operation of an aircraft “so close to another aircraft as to create a collision hazard”), 91.79(d) (establishing minimum altitudes for aircraft but exempting helicopter operation “if the operation is conducted without hazard to persons or property on the surface”) and 91.9 (prohibiting operation of aircraft “in a careless or reckless manner so as to endanger the life or property of another”).
Throckmorton appealed the suspension to the NTSB and a hearing was held before an administrative law judge (AU) on September 7, 1988. At the hearing Throckmorton admitted his flight path deviated from the clearance but alleged it was the “custom and practice” for a helicopter cleared to pass over a runway to fly instead over the grass parallel to the runway in order “to avoid the flow of fixed-wing traffic.” Joint Appendix (JA) No. 6 at 13. He also denied passing dangerously close to other aircraft. At the close of the hearing, the AU issued an order affirming the FAA’s decision regarding the violations but reducing the suspension from ninety to sixty days.
Throckmorton appealed the ALJ’s decision to the full NTSB and the FAA cross-appealed the sanction reduction. By opinion and order adopted October 23, 1990, the full NTSB affirmed the ALJ’s decision except that it reinstated the FAA’s original ninety-day suspension. Throckmorton now challenges the NTSB’s order on the following grounds: (1) the findings of violations are not supported by substantial evidence; (2) the AU’s conduct at the hearing deprived Throckmorton of due process, (3) the regulations at issue are unconstitutionally vague and (4) the NTSB acted improperly when it reinstated the original ninety-day suspension, setting aside the AU’s thirty-day reduction. We find none of these grounds meritorious.
First, Throckmorton asserts the AU’s decision, upheld by the NTSB, that Throckmorton violated the four regulations is not supported by substantial evidence. In reviewing the NTSB’s decision we are bound by section 10(e)(2)(A) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), which requires that we set aside agency findings unsupported by substantial evidence. Chritton v. NTSB, 888 F.2d 854, 856 (D.C.Cir.1989) (citing 49 U.S.C.App. § 1903(d) and 5 U.S.C. § 706(2)(E)). “The substantial evidence test is a narrow standard of review” requiring only “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. (quoting Refrigerated Transp. Co. v. ICC., 616 F.2d 748, 751 (5th Cir.1980)). Under this standard, our function is to determine only “whether ‘the agency ... could fairly and reasonably find the facts as it did.’ ” Id. (quoting Western Air Lines, Inc. v. CAB, 495 F.2d 145, 152 (D.C.Cir.1974)). An agency conclusion “ ‘may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view.’ ” Id. (quoting Western Air Lines, Inc., 495 F.2d at 152). We find the NTSB decision here supported by substantial evidence.
Throckmorton has never disputed that his flight path deviated from the literal terms of his ATC clearance, but has consistently maintained that the deviation was pursuant to “custom and practice” and that it did not bring him within dangerous proximity of the other aircraft. At the hearing witnesses furnished conflicting testimony regarding each of Throckmorton’s defenses. Throckmorton and two other witnesses denied that the helicopter approached dangerously close to the other aircraft, while three of the FAA’s witnesses testified that it did. The AU reasonably resolved this conflict against Throckmorton, concluding that the FAA’s witnesses were in better positions to observe the incident and that Throckmorton and the other two witnesses were not disinterested parties. The AU also rejected Throckmorton’s testimony that the established custom or practice at the Colorado Springs Airport was for helicopters to pass over grass rather than runways, crediting instead the testimony of the experienced air traffic controller who cleared Throckmorton’s pass that he was aware of no such custom. In both cases the NTSB expressly approved the AU’s reasonable credibility determinations. We cannot reexamine those determinations here or substitute our judgment for that of the AU and the NTSB. See Hill v. NTSB, 886 F.2d 1275, 1282 (10th Cir.1989); Borden v. Administrator of FAA, 849 F.2d 319, 321 (8th Cir.1988); King v. NTSB, 766 F.2d 200, 203 (5th Cir.1985); cf. Chirino v. NTSB, 849 F.2d 1525, 1529-30 (D.C.Cir.1988) (upholding NTSB’s reversal of ALJ’s credibility determination as not arbitrary or capricious). Accordingly, we reject Throckmorton’s substantial evidence argument.
Next, Throckmorton challenges the validity of three of the regulations under which he was charged, alleging that Regulations 91.65(a), 91.79(d) and 91.9 are void for vagueness because they “require[ ] airmen to guess at their meaning.” Brief of Petitioner at 19 (citing Brennan v. Occupational Safety & Health Review Comm’n, 505 F.2d 869, 872 (10th Cir.1974)). As we understand Throckmorton’s challenge, he contends these three regulations are unconstitutionally vague because each prohibits conduct only to the extent it creates a hazard but provides no guidelines for determining when the conduct is hazardous. We perceive no constitutional vagueness in the regulatory language. In reviewing regulations for vagueness, we must decide only “whether the regulation ‘delineated its reach in words of common understanding.’ ” Vandehoef v. NTSB, 850 F.2d 629, 630 (10th Cir.1988) (quoting Brennan, 505 F.2d at 872). Further, when considering a vagueness challenge to a “regulation promulgated pursuant to remedial civil legislation ... we must do so ‘in the light of the conduct to which it is applied,’” Brennan, 505 F.2d at 872 (quoting United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 599, 9 L.Ed.2d 561 (1963)), allowing “greater leeway” for regulations and statutes governing business activities than those implicating the first amendment, Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). In such a review, “no more than a reasonable degree of certainty can be demanded” and it is not “unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952). Under these standards we conclude the three regulations here are sufficiently clear to put pilots on notice of the kinds of hazardous conduct proscribed. Cf. Boyce Motor Lines, Inc., supra (rejecting vagueness challenge to ICC regulation requiring vehicles carrying explosives to “avoid, so far as practicable, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings”) (emphasis added); Vandehoef supra (rejecting vagueness challenge to NTSB regulation setting minimum altitude “[e]xcept when necessary for takeoff or landing”); Brennan, supra (finding redundant, but not void for vagueness, regulation requiring presence at workplace of person trained in first aid when there is no medical facility “in near proximity”). Accordingly, we reject Throckmorton’s vagueness argument.
Next, Throckmorton alleges the AU deprived him of due process by prejudging his guilt and by improperly admitting expert testimony. Throckmorton first alleges the AU’s decision was impermissibly based on prejudice because he “expressed an opinion on the merits of the 91.75(a) issue prior to any testimony and transferred the burden of proof from the Administrator to Respondent Throckmorton.” Brief of Petitioner at 9. We find no evidence of prejudice on the AU’s part. In asserting prejudice, Throckmorton relies primarily on statements the AU made at the beginning of the hearing. Noting that Throckmorton’s trial brief expressly admitted deviation from the ATC clearance, the AU stated he was “ready to rule” on that violation and admonished Throckmorton’s counsel: “You better convince me right now. As far as I can see, ATC cleared for pass down the runway and there was not a pass down the runway so why isn’t 91.75(a) admitted?” JA No. 6 at 12. Nevertheless, the AU properly assured Throckmorton’s counsel he would “reserve” his ruling and “listen to the testimony by way of excuse to see if that can be excused.” Id. at 13-14. The ALJ’s statements, taken as a whole, do not “connote[ ] a fixed opinion— ‘a closed mind on the merits of the case’ ” so as to disqualify him for prejudice. United States v. Haldeman, 559 F.2d 31, 36 (D.C.Cir.1976) (footnote omitted) (quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966)), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); see also Southern Pac. Communications v. American Tel. & Tel. Co., 740 F.2d 980, 991 (D.C.Cir.1984) (test for disqualification “may be stated in terms of whether the judge’s mind is irrevocably closed on the issues as they arise in the context of the specific case”), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985); cf. C & W Fish Co. v. Fox, 931 F.2d 1556, 1564-65 (D.C.Cir.1991) (agency administrator should be disqualified from rulemaking on account of prejudice only upon a “clear and convincing showing” of an “unalterably closed mind on matters critical to the disposition of the proceeding”).
We find Throckmorton’s second due process argument even weaker. Throckmorton asserts the AU deprived him of due process by admitting testimony by an expert witness whose identity was not disclosed until seven days before the hearing and by two fact witnesses who were not qualified as experts. We agree with the NTSB that Throckmorton has failed to demonstrate how these alleged errors prejudiced his case. We therefore find no due process deprivation arising from them.
Finally, Throckmorton asserts the NTSB improperly reinstated the FAA’s initial ninety-day suspension which the AU had reduced to sixty days. Throckmorton contends the reinstatement was error because the sixty-day suspension “was consistent with Board precedent which is all that is required.” Brief for Petitioner at 36. We find no error in the NTSB’s reinstatement of the original sanction. Throckmorton admits that NTSB precedent supports a thirty-day suspension for his low flight violation alone. Taking into account the additional regulatory violations for deviating from ATC clearance and passing hazardously close to other aircraft, we cannot conclude that a ninety-day suspension was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Cf. Winslow v. NTSB, 885 F.2d 615, 618 (9th Cir.1989) (upholding NTSB’s reinstatement of FAA ninety-day suspension for low flight, which had been reduced by AU to 30-day suspension, concluding that the ninety-day suspension “does not represent a sufficient deviation from NTSB precedent to require the Board to state reasons for its decision or otherwise to justify our interference with the Board’s decision”).
For the preceding reasons, the petition for review is
Denied.
. Section 91.75(a) provided:
Compliance with ATC clearances and instructions.
(a)When an ATC clearance has been obtained, no pilot in command may deviate from that clearance, except in an emergency, unless he obtains an amended clearance. However, except in positive controlled airspace, this paragraph does not prohibit him from cancelling an IFR flight plan if he is operating in VFR weather conditions. If a pilot is uncertain of the meaning of an ATC clearance, he shall immediately request clarification from ATC.
14 C.F.R. § 91.75(a) (1986) (now 14 C.F.R. § 91.123(a) (1991)).
. Section 91.65(a) provided:
Operating near other aircraft.
(a) No person may operate an aircraft so close to another aircraft as to create a collision hazard.
14 C.F.R. § 91.65(a) (1986) (now 14 C.F.R. § 91.111(a) (1991)).
. Section 91.79 provided:
Minimum safe altitudes; general.
Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:
(a) Anywhere.
An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.
(b) Over congested areas.
Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.
(c) Over other than congested areas.
An altitude of 500 feet above the surface except over open water or sparsely populated areas. In that case, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.
(d) Helicopters.
Helicopters may be operated at less than the mínimums prescribed in paragraph (b) or (c) of this section if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with routes or altitudes specifically prescribed for helicopters by the Administrator.
14 C.F.R. § 91.79 (1986) (now 14 C.F.R. § 91.-111(a) (1991)).
.Section 91.9 provided:
Careless or reckless operation.
No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.
14 C.F.R. § 91.9 (1986) (now 14 C.F.R. § 91.13 (1991)).
. We do not understand Throckmorton’s challenge to reach Regulation 91.75(a) which absolutely and unambiguously prohibits deviation from an ATC clearance.
. Throckmorton cites as additional evidence of bias that the ALJ sua sponte questioned one of the witnesses. We see nothing unusual, however, in a judge's questioning of a witness. See Roach v. NTSB, 804 F.2d 1147, 1160 (10th Cir.1986) (“An ALJ has an obligation to conduct the hearing in an orderly manner and to elicit the truth. He has the right to interrogate witnesses for that purpose.”), cert. denied, 486 U.S. 1006, 108 S.Ct. 1732, 100 L.Ed.2d 195 (1988); see also Fed.R.Evid. 614(b) ("The court may interrogate witnesses, whether called by itself or by a party.").
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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songer_treat
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the 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.
Lucy WALKER, Plaintiff-Appellant, v. JEFFERSON COUNTY HOME, et al., Defendants-Appellees.
No. 82-7297.
United States Court of Appeals, Eleventh Circuit.
March 16, 1984.
C. Michael Quinn, Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiff-appellant.
Edwin A. Strickland, Michael L. Hall, Birmingham, Ala., for defendants-appellees.
Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
TUTTLE, Senior Circuit Judge.
Plaintiff-appellant Lucy Walker appeals from a judgment by the United States District Court for the Northern District of Alabama that defendant-appellee Jefferson County Home (the “Home”) did not discriminate against Walker on the basis of race in violation of Title VII of the Civil Rights Act. This Court holds that the Home did violate Title VII. Therefore, we reverse the district court’s judgment.
I. BACKGROUND
The Home is a nursing home in Jefferson County, Alabama. In 1965, the Home hired Walker, a black woman, to work in the Home's Housekeeping Department. Later, Walker was transferred to Nursing Services as a nurse’s aid. Early in 1972, the Housekeeping Department supervisor was involved in an automobile accident and had to be absent from work for several months. The Home decided to fill the position on a temporary basis. A white employee, Ivory McCutcheon, who had been hired by the Home two months earlier, was transferred from the kitchen to the Housekeeping Department supervisor position. Although McCutcheon had no previous supervisory experience,- the Home did not consider anyone else for the position. After the regular supervisor returned, McCutcheon remained in the Housekeeping Department to assist the supervisor. McCutcheon worked in the Housekeeping Department for fifteen or sixteen months until August 19,1973, when she resigned.
The regular supervisor decided to retire in June, 1974 and gave notice sometime earlier. The Home’s director, Lillian Holmes, requested from the Personnel Board of Jefferson County a certified list of names of qualified people from which she could fill the supervisor position. The Personnel Board had established prior supervisory experience and a high school diploma or its equivalent as the qualifications for the position. Walker was certified as qualified and was referred to the Home with two other candidates, both of whom were white and one of whom was McCutcheon. Following interviews of the three candidates, Holmes selected McCutcheon for the position. Walker filed a discrimination charge with the EEOC, which issued a right-to-sue letter. Walker then filed this action in district court on February 20, 1976.
II. THE. DISTRICT COURT OPINION
The district court applied a disparate treatment analysis to the facts of the case. Disparate treatment occurs when “the employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). The district court first examined whether Walker had met the requirements of a prima facie disparate treatment case: 1) the existence of a vacant position; 2) the application to the position by appellant; 3) the selection of a person of another race; and 4) the possession by appellant of the necessary qualifications for appointment. See McDonnell Douglas v. Green, 411 U.S. 792,802, 93 S.Ct. 1817,1824, 36 L.Ed.2d 668 (1973).
The district court concluded that Walker had met the first three requirements. It found that Holmes chose McCutcheon because she had more recent supervisory experience — in particular, the supervisory experience she had gained when she replaced and then assisted the regular supervisor at the Home. There was some question about the type of supervisory experience that Walker had received prior to her employment with the Home. Prior to 1965, she held three housekeeping or janitorial type jobs, one with a high school and two with hospitals or clinics. Apparently, Walker’s original application for employment with the Home in 1965, her initial application to the Personnel Board in 1973, and a deposition taken under oath several months before the trial, did not- indicate that her positions prior to employment with the Home provided any supervisory experience. By supplementary notation filed June 10, 1974 with the Personnel Board and in testimony at trial, however, Walker indicated that some supervisory duties attached to her earlier positions. Nevertheless, the district court concluded that those earlier positions had little, if any, supervisory responsibilities attached to them.
Although the district court found that Walker was not “qualified,” the court noted that circumstances that occurred in 1972 complicated the issue. In particular, the court found that in 1972, when McCutcheon was given the opportunity to acquire supervisory experience, the Home had a general policy, practice, or pattern of favoring whites over blacks for movement into supervisory positions. According to the district court, “this infected at least to some degree the selection of Ms. McCutcheon to be this Acting Housekeeper and in the non-consideration of Ms. Walker or others for that same position.” Although the district court was troubled that the reason for Walker’s nonselection in 1974 arose out of preferential treatment given a white employee in 1972, it concluded that the statute of limitations barred Walker from litigating discriminatory treatment that occurred in 1972. In this appeal, Walker contends that the district court did not apply the proper legal analysis to the facts.
III. LEGAL ANALYSIS
We must determine whether the district court applied the proper legal analysis to the facts of this case. Although the district court applied a disparate treatment analysis, on appeal, Walker contends that she proved both a disparate impact theory and a disparate treatment theory of discrimination. See Teamsters v. United States, 431 U.S. 324, 338 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977) (either theory may be applied to a particular set of facts). We hold that Walker has made a showing of discrimination under the disparate impact theory. Disparate impact occurs when an employer bases an employment selection decision on a criterion that is neutral on its face but disfavors black employees' in operation. “Under the Act [Title VII], practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). In a disparate impact case, the court clearly may consider evidence of prior discriminatory acts if such evidence is relevant to show independently actionable conduct occurring within the statutory period. See e.g., Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980); Fisher v. Proctor & Gamble Mfg. Co., 613 F.2d 527 (5th Cir.1980); Guardians Association v. Civil Service Commission, 633 F.2d 232 (2nd Cir.1980), cert, denied, - U.S.-, 103 S.Ct. 3568, 77 L.Ed.2d 1410 (1983).
In this case, the Home established a requirement of prior supervisory experience for promotion to Housekeeping Department supervisor. On its face, such a policy is neutral because it applies equally to all applicants. The district court found, however, that the Home had a past policy or practice of favoring whites over blacks for movement into positions from which they could gain initial supervisory experience. In turn, that past intentional discrimination was carried into the 1974 policy, which, although neutral on its face, had a discriminatory impact on blacks. In other words, blacks were first denied the opportunity to obtain supervisory experience, and then were told that they were “unqualified” for promotion because they lacked the very quality that had intentionally been denied to them. Thus, the requirement of supervisory experience served to freeze the status quo of prior discriminatory employment practices.
Lest it be said that the Home's policy of favoring whites over blacks for supervisory positions had no impact on other blacks who might seek to fill the vacancy, we call attention to a personnel policy of the Home. That policy, which was in effect in 1974, read into the record, was:
When filling vacant positions the County. Home gives first consideration to Home employees who meet the job requirements in preference to outside recruitment. However, you must be eligible for appointment under the rules established by the Personnel Board of Jefferson County.
Thus, the employees of the Home became a separate group for consideration for promotion. A policy having a disparate impact on the black employees as a class therefore constituted disparate impact.
Once the plaintiff has shown that the facially neutral employment practice has a discriminatory impact, the employer may nevertheless prevail by showing that the practice was a “business necessity.” A practice is a business necessity only if it bears “a manifest relationship to the employment in question.” Griggs v. Duke Power Co., 401 U.S. at 432, 91 S.Ct. at 854. Accord Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982). The burden of persuasion shifts to the employer to prove business necessity and rebut the plaintiff’s prima facie case. Eastland v. Tennessee Valley Authority, 704 F.2d 613, 619 (11th Cir.1983); Johnson v. Uncle Ben’s, Inc., 657 F.2d 750, 752-53 (5th Cir.1981), cert, denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982). In determining whether the employer has met its burden, the court looks at the amount of skill required for the position and the economic and human risks involved. “When a job requires a small amount of skill and training and the consequences of hiring an unqualified applicant are insignificant, the courts should examine closely any pre-employment standard or criteria which discriminate against minorities. In such a case, the employer should have a heavy burden to demonstrate to the court’s satisfaction that his employment criteria are job-related.” Spurlock v. United Air Lines, Inc., 475 F.2d 216, 219 (10th Cir.1972). See EEOC v. International Union of Operating Engineers, Local 14 & 15, 553 F.2d 251 (2d Cir.1977) (union admission requirements of city operator’s license, ability to operate more than one piece of equipment, and 200 days’ experience were not job related); Fisher v. Proctor & Gamble Mfg. Co., 613 F.2d 527, 541-42 n. 27 (5th Cir.1980), cert, denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981) (injunction against 20-year experience requirement for promotion from nonmanagement to management positions upheld in view of racial impact); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir.1978), cert, denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979) (experience prerequisite for eligibility for apprenticeship program and on-the-job training found .to perpetuate effects of past discrimination; district court ordered to consider whether experience prerequisite should be shortened). Compare Spurlock v. United Air Lines, Inc., 475 F.2d 216 (10th Cir.1972) (job of airline flight officer requires high degree of skill, and economic and human risks are great); Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir.1974), cert, denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 822 (1975) (requirement that applicants for bus-driving position be younger than 35 years of age upheld on safety grounds). See generally B. Schlei & P. Grossman, Employment Discrimination Law, 167-72 (1983).
The Home failed to meet the rigorous standard of proving that the requirement of supervisory experience was job related and a business necessity. The Home’s only evidence in support of business necessity was its emphasis on the importance of the Housekeeping Department supervisor’s job in a nursing home. The Home did not show that the job of Housekeeping Department supervisor is highly skilled or that the economic and human risks involved in hiring an unqualified applicant are great. Moreover, when McCutcheon was hired as a temporary supervisor in 1972, she had no supervisory experience. Therefore, we are not persuaded that the Home demonstrated that its supervisory experience policy was a business necessity.
Under the disparate impact model, if the employer establishes job-relatedness, the burden then shifts to the employee to show the availability of other selection devices with a lesser adverse impact which would serve the employer’s needs, Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975), or to show that the employer was using the practice as a pretext for discrimination. Connecticut v. Teal, 457 U.S. 440, 447, 102 S.Ct. 2525, 2531, 73 L.Ed.2d 130 (1982). Because the Home failed to establish job-relatedness, we need not examine alternatives or pretext.
The Home urges that Walker did not properly raise the occurrence of discrimination in 1972 in her EEOC charge, complaint, or in the pretrial order. We find this argument to be without merit.
Accordingly, the judgment is REVERSED and REMANDED to the district court to determine the appropriate relief.
. Thus, the statute of limitations does not prevent the court from considering 1972 events. The district court relied on United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), to rule that Walker’s suit was time barred. Unlike our case, however, in Evans the plaintiff relied on a “continuing violation” theory, not on a disparate impact theory-
. The Home and the district court questioned whether McCutcheon’s promotion in 1972 occurred prior to or subsequent to March 24, 1972, the date Title VII first became applicable to government employers. The record, however, indicates that McCutcheon was promoted sometime in April 1972.
. The Personnel Board announcement described the duties as follows:
Plans, assigns and supervises the work of a group of employees performing cleaning, housekeeping, and minor maintenance duties; demonstrates methods and instructs subordinates in the performance of such duties as sweeping, mopping, waxing and polishing floors, washing windows, cleaning restrooms and replenishing necessary supplies; inspects facilities to assure adherence to standards of cleanliness and sanitation; directs the mending, pick-up and distribution of linens; prepares -work schedules and assures adequate staffing, evaluates operations and makes necessary changes to improve the quality of performance; requisitions janitorial and housekeeping supplies; performs related duties as required.
. The district court apparently reversed the order of proof. It determined the question of pretext before examining business necessity.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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sc_respondent
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168
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
VLANDIS v. KLINE et al.
No. 72-493.
Argued March 20, 1973
Decided June 11, 1973
Stewart, J., delivered the opinion of the Court, in which Brennan, Marshall, Blacicmun, and Powell, JJ., joined. Marshall, J., filed a concurring opinion, in which Brennan, J., joined, post, p. 454. White, J., filed an opinion concurring in the judgment, post, p. 456. Burger, C. J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 459. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Douglas, J., joined, post, p. 463.
John G. Hill, Jr., Assistant Attorney General of Connecticut, argued the cause for appellant. With him on the brief was Robert K. Killian, Attorney General.
John A. Dziamba argued the cause for appellees. With him on the brief was Douglas M. Crockett
Leonard J. Schwartz filed a brief for the American Civil Liberties Union of Ohio, Inc., as amicus curiae urging affirmance.
Slade Gorton, Attorney General, James B. Wilson, Senior Assistant Attorney General, and Gerald L. Coe, Assistant Attorney General, filed a brief for the State of Washington as amicus curiae.
Mr. Justice Stewart
delivered the opinion of the Court.
Like many other States, Connecticut requires nonresidents of the State who are enrolled in the state university system to pay tuition and other fees at higher rates than residents of the State who are so enrolled. Conn. Gen. Stat. Rev. § 10-329 (b) (Supp. 1969), as amended by Public Act No. 5, § 122 (June Sess. 1971). The constitutional validity of that requirement is not at issue in the case before us. What is at issue here is Connecticut’s statutory definition of residents and nonresidents for purposes of the above provision.
Section 126 (a) (2) of Public Act No. 5, amending § 10-329 (b), provides that an unmarried student shall be classified as a nonresident, or “out of state,” student if his “legal address for any part of the one-year period immediately prior to his application for admission at a constituent unit of the state system of higher education was outside of Connecticut.” With respect to married students, § 126 (a)(3) of the Act provides that such a student, if living with his spouse, shall be classified as “out of state” if his “legal address at the time of his application for admission to- such a unit was outside of Connecticut.” These classifications are permanent and irrebuttable for the whole time that the student remains at the university, since § 126 (a) (5) of the Act commands that: “The status of a student, as established at the time of his application for admission at a constituent unit of the state system of higher education under the provisions of this section, shall be his status for the entire period of his attendance at such constituent unit.” The present case concerns the constitutional validity of this conclusive and unchangeable presumption of nonresident status from the fact that, at the time of application for admission, the student, if married, was then living outside of Connecticut, or, if single, had lived outside the State at some point during the preceding year.
One appellee, Margaret Marsh Kline, is an undergraduate student at the University of Connecticut. In May 1971, while attending college in California, she became engaged to Peter Kline, a lifelong Connecticut resident. Because the Klines wished to reside in Connecticut after their marriage, Mrs. Kline applied to the University of Connecticut from California. In late May, she was accepted and informed by the University that she would be considered an in-state student. On June 26, 1971, the appellee and Peter Kline were married in California, and soon thereafter took up residence in Storrs, Connecticut, where they have established a permanent home. Mrs. Kline has a Connecticut driver’s license, her car is registered in Connecticut, and she is registered as a Connecticut voter. In July 1971, Public Act No. 5 went into effect. Accordingly, the appellant, Director of Admissions at the University of Connecticut, irreversibly classified Mrs. Kline as an out-of-state student, pursuant to § 126 (a) (3) of that Act. As a consequence, she was required to pay $150 tuition and a $200 nonresident fee for the first semester, whereas a student classified as a Connecticut resident paid no tuition; and upon registration for the second semester, she was required to pay $425 tuition plus another $200 nonresident fee, while a student classified as a Connecticut resident paid only $175 tuition.
The other appellee, Patricia Catapano, is an unmarried graduate student at the same University. She applied for admission from Ohio in January 1971, and was accepted in February of that year. In August 1971, she moved her residence from Ohio to Connecticut and registered as a full-time student at the University. Like Mrs. Kline, she has a Connecticut driver’s license, her car is registered in Connecticut, and she is registered as a Connecticut voter. Pursuant to § 126 (a) (2) of the 1971 Act, the appellant classified her permanently as an out-of-state student. Consequently, she, too, was required to pay $150 tuition and a $200 nonresident fee for her first semester, and $425 tuition plus a $200 nonresident fee for her second semester.
Appellees then brought suit in the District Court pursuant to the Civil Rights Act of 1871, 42 U. S. C. § 1983, contending that they were bona fide residents of Connecticut, and that § 126 of Public Act No. 5, under which they were classified as nonresidents for purposes of their tuition and fees, infringed their rights to due process of law and equal protection of the laws, guaranteed by the Fourteenth Amendment to the Constitution. After the convening of a three-judge District Court, that court unanimously held §§ 126 (a)(2), (a)(3), and (a)(5) unconstitutional, as violative of the Fourteenth Amendment, and enjoined the appellant from enforcing those sections. 346 F. Supp. 526 (1972). The court also found that before the commencement of the spring semester in 1972, each appellee was a bona fide resident of Connecticut; and it accordingly ordered that the appellant refund to each of them the amount of tuition and fees paid in excess of the amount paid by resident students for that semester. On December 4, 1972, we noted probable jurisdiction of this appeal. 409 U. S. 1036.
The appellees do not challenge, nor did the District Court invalidate, the option of the State to classify students as resident and nonresident students, thereby obligating nonresident students to pay higher tuition and fees than do bona fide residents. The State’s right to make such a classification is unquestioned here. Rather, the appellees attack Connecticut’s irreversible and irre-buttable statutory presumption that because a student’s legal address was outside the State at the time of his application for admission or at some point during the preceding year, he remains a nonresident for as long as he is a student there. This conclusive presumption, they say, is invalid in that it allows the State to classify as “out-of-state students” those who are, in fact, bona fide residents of the State. The appellees claim that they have a constitutional right to controvert that presumption of nonresidence by presenting evidence that they are bona fide residents of Connecticut. The District Court agreed: “Assuming that it is permissible for the state to impose a heavier burden of tuition and fees on non-resident than on resident students, the state may not classify as 'out of state students' those who do not belong in that class.” 346 F. Supp., at 528. We affirm the judgment of the District Court.
Statutes creating permanent irrebuttable presumptions have long been disfavored under the Due Process Clauses of the Fifth and Fourteenth Amendments. In Heiner v. Donnan, 285 U. S. 312 (1932), the Court was faced with a constitutional challenge to a federal statute that created a conclusive presumption that gifts made within two years prior to the donor's death were made in contemplation of death, thus requiring payment by his estate of a higher tax. In holding that this irrefutable assumption was so arbitrary and unreasonable as to deprive the taxpayer of his property without due process of law, the Court stated that it had “held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut it violates the due process clause of the Fourteenth Amendment.” Id., at 329. See, e. g., Schlesinger v. Wisconsin, 270 U. S. 230 (1926); Hoeper v. Tax Comm’n, 284 U. S. 206 (1931). See also Tot v. United States, 319 U. S. 463, 468-469 (1943); Leary v. United States, 395 U. S. 6, 29-53 (1969). Cf. Turner v. United States, 396 U. S. 398, 418-419 (1970).
The more recent case of Bell v. Burson, 402 U. S. 535 (1971), involved a Georgia statute which provided that if an uninsured motorist was involved in an accident and could not post security for the amount of damages claimed, his driver’s license must be suspended without any hearing on the question of fault or responsibility. The Court held that since the State purported to be concerned with fault in suspending a driver’s license, it could not, consistent with procedural due process, conclusively presume fault from the fact that the uninsured motorist was involved in an accident, and could not, therefore, suspend his driver’s license without a hearing on that crucial factor.
Likewise, in Stanley v. Illinois, 405 U. S. 645 (1972), the Court struck down, as violative of the Due Process Clause of the Fourteenth Amendment, Illinois’ irrebut-table statutory presumption that all unmarried fathers are unqualified to raise their children. Because of that presumption, the statute required the State, upon the death of the mother, to take custody of all such illegitimate children, without providing any hearing on the father’s parental fitness. It may be, the Court said, “that most unmarried fathers are unsuitable and neglectful parents.... But all unmarried fathers are not in this category; some are wholly suited to have custody of their children.” Id., at 654. Hence, the Court held that the State could not conclusively presume that any individual unmarried father was unfit to raise his children; rather, it was required by the Due Process Clause to provide a hearing on that issue. According to the Court, Illinois “insists on presuming rather than proving Stanley’s unfitness solely because it is more convenient to presume than to prove. Under the Due Process Clause that advantage is insufficient to justify refusing a father a hearing....” Id., at 658.
The same considerations obtain here. It may be that most applicants to Connecticut’s university system who apply from outside the State or within a year of living out of State have no real intention of becoming Connecticut residents and will never do so. But it is clear that not all of the applicants from out of State inevitably fall in this category. Indeed, in the present case, both appellees possess many of the indicia of Connecticut residency, such as year-round Connecticut homes, Connecticut drivers’ licenses, car registrations, voter registrations, etc.; and both were found by the District Court to have become bona fide residents of Connecticut before the 1972 spring semester. Yet, under the State’s statutory scheme, neither was permitted any opportunity to demonstrate the bona fides of her Connecticut residency for tuition purposes, and neither will ever have such an opportunity in the future so long as she remains a student.
The State proffers three reasons to justify that permanent irrebuttable presumption. The first is that the State has a valid interest in equalizing the cost of public higher education between Connecticut residents and nonresidents, and that by freezing a student’s residential status as of the time he applies, the State ensures that its bona fide in-state students will receive their full subsidy. The State’s objective of cost equalization between bona fide residents and nonresidents may well be legitimate, but basing the bona fides of residency solely on where a student lived when he applied for admission to the University is using a criterion wholly unrelated to that objective. As is evident from the situation of the appellees, a student may be a bona fide resident of Connecticut even though he applied to the University from out of State. Thus, Connecticut’s conclusive presumption of nonresidence, instead of ensuring that only its bona fide residents receive their full subsidy, ensures that certain of its bona fide residents, such as the ap-pellees, do not receive their full subsidy, and can never do so while they remain students.
Second, the State argues that even if a student who applied to the University from out of State may at some point become a bona fide resident of Connecticut, the State can nonetheless reasonably decide to favor with the lower rates only its established residents, whose past tax contributions to the State have been higher. According to the State, the fact that established residents or their parents have supported the State in the past justifies the conclusion that applicants from out of State — who are presumed not to be such established residents — may be denied the lower rates, even if they have become bona fide residents.
Connecticut’s statutory scheme, however, makes no distinction on its face between established residents and new residents. Rather, through § 122, the State purports to distinguish, for tuition purposes, between residents and nonresidents by granting the lower rates to the former and denying them to the latter. In these circumstances, the State cannot now seek to justify its classification of certain bona fide residents as nonresidents, on the basis that their Connecticut residency is “new.”
Moreover, § 126 would not always operate to effectuate the State’s asserted interest. For it is not at all clear that the conclusive presumption required by that section prevents only “new” residents, rather than “established” residents, from obtaining the lower tuition rates. For example, a student whose parents were lifelong residents of Connecticut, but who went to college at Harvard, established a legal address there, and applied to the University of Connecticut’s graduate school during his senior year, would be permanently classified as an “out of state student,” despite his family’s status as “established” residents of Connecticut. Similarly, the appellee Kline may herself be a “new” resident of Connecticut; but her husband is an established, lifelong resident, whose past tax contribution to the State, under the State’s theory, should entitle his family to the lower rates. Conversely, the State makes no attempt to ensure that those students to whom it does grant in-state status are “established” residents of Connecticut. Any married person, for instance, who moves to Connecticut before applying to the University would be considered a Connecticut resident, even if he has lived there only one day. Thus, even in terms of the State’s own asserted interest in favoring established residents over new residents, the provisions of § 126 are so arbitrary as to constitute a denial of due process of law.
The third ground advanced to justify § 126 is that it provides a degree of administrative certainty. The State points to its interest in preventing out-of-state students from coming to Connecticut solely to obtain an education and then claiming Connecticut residence in order to secure the lower tuition and fees. The irrebutta-ble presumption, the State contends, makes it easier to separate out students who come to the State solely for its educational facilities from true Connecticut residents, by eliminating the need for an individual determination of the bona fides of a person who lived out of State at the time of his application. Such an individual determination, it is said, would not only be an expensive administrative burden, but would also be very difficult to make, since it is hard to evaluate when bona fide residency exists. Without the conclusive presumption, the State argues, it would be almost impossible to prevent out-of-state students from claiming a Connecticut residence merely to obtain the lower rates.
In Stanley v. Illinois, supra, however, the Court stated that “the Constitution recognizes higher values than speed and efficiency.” 405 U. S., at 656. The State’s interest in administrative ease and certainty cannot, in and of itself, save the conclusive presumption from invalidity under the Due Process Clause where there are other reasonable and practicable means of establishing the pertinent facts on which the State’s objective is premised. In the situation before us, reasonable alternative means for determining bona fide residence are available. Indeed, one such method has already been adopted by Connecticut; after § 126 was invalidated by the District Court, the State established reasonable criteria for evaluating bona fide residence for purposes of tuition and fees at its university system. These criteria, while perhaps more burdensome to apply than an irre-buttable presumption, are certainly sufficient to prevent abuse of the lower, in-state rates by students who come to Connecticut solely to obtain an education.
In sum, since Connecticut purports to be concerned with residency in allocating the rates for tuition and fees in its university system, it is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of nonresidence, when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination. Rather, standards of due process require that the State allow such an individual the opportunity to present evidence showing that he is a bona fide resident entitled to the in-state rates. Since § 126 precluded the appellees from ever rebutting the presumption that they were nonresidents of Connecticut, that statute operated to deprive them of a significant amount of their money without due process of law.
We are aware, of course, of the special problems involved in determining the bona fide residence of college students who come from out of State to attend that State’s public university. Our holding today should in no wise be taken to mean that Connecticut must classify the students in its university system as residents, for purposes of tuition and fees, just because they go to school there. Nor should our decision be construed to deny a State the right to impose on a student, as one element in demonstrating bona fide residence, a reasonable durational residency requirement, which can be met while in student status. We fully recognize that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis.
We hold only that a permanent irrebuttable presumption of nonresidence — the means adopted by Connecticut to preserve that legitimate interest — is violative of the Due Process Clause, because it provides no opportunity for students who applied from out of State to demonstrate that they have become bona fide Connecticut residents. The State can establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates. Indeed, as stated above, such criteria exist; and since § 126 was invalidated, Connecticut, through an official opinion of its Attorney General, has adopted one such reasonable standard for determining the residential status of a student. The Attorney General’s opinion states:
“In reviewing a claim of in-state status, the issue becomes essentially one of domicile. In general, the domicile of an individual is his true, fixed and permanent home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning. This general statement, however, is difficult of application. Each individual case must be decided on its own particular facts. In reviewing a claim, relevant criteria include year-round residence, voter registration, place of filing tax returns, property ownership, driver’s license, car registration, marital status, vacation employment, etc.”
Because we hold that the permanent irrebuttable presumption of nonresidence created by subsections (a)(2), (a) (3), and (a) (5) of Conn. Gen. Stat. Rev. § 10-329 (b) (Supp. 1969), as amended by Public Act No. 5, § 126 (June Sess. 1971), violates the Due Process Clause of the Fourteenth Amendment, the judgment of the District Court is affirmed.
It is so ordered.
Section 122 of that Act provides that “the board of trustees of The University of Connecticut shall fix fees for tuition of not less than three hundred fifty dollars for residents of this State and not less than eight hundred fifty dollars for nonresidents....” Pursuant to this statute, the University promulgated regulations fixing the tuition per semester as follows:
Fall semester Spring semester
1971-72 1972, and thereafter
None $175.00 In-state student
$150.00 $425.00 Out-of-state student
In addition, out-of-state students must pay a $200 nonresident fee per semester.
See n. 1, supra.
While the case was pending in the District Court, the Connecticut Legislature passed a bill relating to tuition payments by nonresidents, House Bill No. 5302, which would have repealed the particular portions of the statute that were under constitutional attack. On May 18, 1972, however, the Governor of Connecticut vetoed that bill.
Moreover, in Carrington v. Rash, 380 U. S. 89 (1965), the Court held that a permanent irrebuttable presumption of nonresidence violated the Equal Protection Clause of the Fourteenth Amendment. That case involved a provision of the Texas Constitution which prohibited any member of the Armed Forces who entered the service as a resident of another State and then moved his home to Texas during the course of his military duty, from ever satisfying the residence requirement for voting in Texas elections, so long as he remained a member of the Armed Forces. The effect of that provision was to create a conclusive presumption that all servicemen who moved to Texas during their military service, even if they became bona fide residents of Texas, nonetheless remained nonresidents for purposes of voting. The Court held that “[b]y forbidding a soldier ever to controvert the presumption of non-residence, the Texas Constit ution imposes an invidious discrimination in violation of the Fourteenth Amendment.” Id., at 96. See als o Dunn v. Blumstein, 405 U. S. 330, 349-352 (1972); Shapiro v. Thompson, 394 U. S. 618 (1969).
See n. 1, supra.
But even if we accepted the State’s argument that its statutory scheme operates to apportion tuition rates on the basis of old and new residency, that justification itself would give rise to grave problems under the Equal Protection Clause of the Fourteenth Amendment. For in Shapiro v. Thompson, supra, the Court rejected the contention that a challenged classification could be sustained as an attempt to distinguish between old and new residents on the basis of the contribution they have made to the community through past payment of taxes. That reasoning, the Court stated, “would logically permit
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_appel1_7_5
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
James WILLIAMS et al., Plaintiffs-Appellants, v. The KROGER COMPANY and Local Union No. 957, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendants-Appellees.
No. 16774.
United States Court of Appeals Sixth Circuit.
Dec. 1, 1966.
Paul H. Tobias, Cincinnati, Ohio, for appellants.
J. Mack Swigert, Cincinnati, Ohio, Thomas D. Heekin, Cincinnati, Ohio, on brief, William F. Sherman, Cincinnati, Ohio, of counsel, for Kroger Co.
Robert C. Knee, Dayton, Ohio, for Local Union 957, et al.
Before WEICK, Chief Judge, and O’SULLIVAN and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
This is an appeal from an order granting summary judgment and dismissing a suit brought by some twenty employees against Local Union 957 and the Kroger Company under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (a).
The Kroger Company had warehouses in Cincinnati and Dayton, Ohio. Affiliated local unions of the International Brotherhood of Teamsters represented employees at each warehouse under separate contracts: Local 957 at the Dayton warehouse and Local 100 at the Cincinnati warehouse.
The controversy arose when Kroger closed the Dayton warehouse and transferred its operations to Cincinnati. Appellants were given the choice of either receiving vacation and severance pay or of being transferred to Cincinnati, where they would lose the seniority rights acquired under Kroger’s contract with Local 957. Appellants elected to be transferred but undertook to preserve their seniority rights under the collective bargaining agreement by filing a grievance with Local 957. This grievance was processed only through the initial steps of the grievance procedure. Both the Local 957 and Local 100 contracts provide for grievance procedure culminating in arbitration.
In their complaint appellants seek a declaratory judgment to the effect that under the Local 957 agreement they have retained seniority rights for purpose of job assignment. They also seek $10,000 in compensatory damages and $20,000 in punitive damages.
The collective bargaining agreement between Kroger and Local 957 contains the following provisions:
“Section 54 The parties recognize that from time to time the needs of the business may require changes in operations, opening of facilities, closing of facilities, or transfers of certain operations. When an operation is transferred, jobs at the new location which become available within the first 60 days after the transfer will first be offered to the employees based on seniority. Employees transferred shall be placed at the bottom of the appropriate seniority list at the new location for the purpose of lay-off and rehire. It is further understood and agreed that employees shall experience no break in their Company service as a result of the transfer, and will receive any benefits at the new location to which their total length of service entitles them. It is recognized that such changes may result in disputes regarding seniority rights. If and when such a dispute involves another local union of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, such dispute shall be first considered under Step 3 of the grievance procedure.”
The collective bargaining agreement between Kroger and Local 100 provides as follows: “On lay-offs, job assignments and rehiring the principle of seniority shall apply.”
It appears from the averments of the complaint that Kroger gave advance notice that employees transferred to Cincinnati would go to the bottom of the seniority list for all purposes, including job assignment. The complaint avers as follows:
“At a meeting on or about October 19, 1964, Company officials of a rank lesser than Mr. Korengel, informed some of the Plaintiffs that after the transfer to Cincinnati, plaintiffs would not be assigned to the jobs which become available at Woodlawn as a result of the transfer, that they would lose their jobs and go to the bottom of the seniority list at Woodlawn for all purposes, including job assignment.”
In dismissing the action, the District Judge said:
“About October 12, 1964, plaintiffs were informed by Kroger that Kroger contemplated closing the Willowburn [Dayton] warehouse and transferring its operation there to Woodlawn [Cincinnati] . They were informed on October 19, 1964, that they would lose their seniority rights for all purposes including job assignment if they accepted transfer and they were given the alternative of accepting severance and vacation pay in lieu of transfer.
“In transferring, plaintiffs moved out of the geographical or territorial jurisdiction of Local 957 in Dayton, and into the jurisdiction of Local 100 in Cincinnati. Local 100’s agreement with Kroger provides that any transferees lose their seniority for practically all purposes. Local 100, of which plaintiffs are now members, is the ex-elusive bargaining agent for its members.
“On November 11, 1964, plaintiffs filed a grievance with Local 957. This grievance has never been processed beyond initial steps even though Local 957 officials represented that they were processing it. Plaintiffs contend that their acceptance of the transfer was conditioned upon said grievance and their understanding that their rights would be determined pursuant to the procedure of Local 957. The amended complaint alleges further that the defendants and Local 100 held at least two secret meetings at which they decided not to process the grievance and that plaintiffs should lose their seniority rights.
“The affidavits of Frank Dull, President of Local 957, and Claude Stewart, Business Manager of Local 957, state that they did not process the grievance since they felt it was without merit and that plaintiffs were informed of this in March, 1965. They further stated that they met with Kroger officials prior to and after the grievance was filed in order to work out the problems forming the basis of it. They have no longer attempted to represent plaintiffs since they are now members of Local 100.
“There are also on file the affidavits of R. D. Wuerfel, Personnel Manager of Kroger, and W. R. Bedell, of Kroger’s Labor Relations Department. The former states that plaintiffs were informed of the consequences of the transfer and voluntarily made it and that Kroger has never refused to consider the grievance under the procedure of the Local 100 contract. The latter states that at the grievance meeting in Indianapolis on April 6 and 7, 1965, the dispute forming the basis of this suit was not presented and Kroger has not been requested to discuss it.
“Plaintiffs have also filed a second grievance under the procedure of the Local 100 contract. This grievance has not been resolved but is in the process of consideration.”
We agree with the District Judge that Kroger has followed the procedure required by the above quoted Section 5.4 of its contract with Local 957. Appellants therefore have failed to state a claim for breach of contract against Kroger for which relief can be granted under § 301. There being no showing of bad faith or dishonesty of purpose on the part of the Union, appellants cannot recover against the Union under § 301 for its failure to process a grievance which it found to be without merit. Humphrey v. Moore, 375 U.S. 335, 84 S. Ct. 363, 11 L.Ed.2d 370, rehearing denied, 376 U.S. 935, 84 S.Ct. 697, 11 L.Ed.2d 655; Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048.
We conclude that the district court was correct in granting summary judgment.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_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.
TRANS-PACIFIC FREIGHT CONFERENCE OF JAPAN, American Mail Line, Ltd., et al., Petitioners, v. FEDERAL MARITIME BOARD, now Federal Maritime Commission, and United States of America, Respondents, States Marine Lines, Inc., and Global Bulk Transport Corporation, Intervenors.
No. 16423.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 27, 1961.
Decided April 12, 1962.
Mr. Charles F. Warren, Washington, D. C., with whom Mr. Alexander D. Calhoun, Jr., San Francisco, Cal., was on the brief, for petitioners.
Mr. Robert E. Mitchell, Deputy Gen. Counsel, Federal Maritime Commission, with whom Messrs. James L. Pimper, Gen. Counsel, Federal Maritime Commission, and Richard A. Solomon, Atty., Dept, of Justice, were on the brief, for respondents. Mr. Edward Aptaker, Asst. Gen. Counsel, Federal Maritime Commission, also entered an appearance for respondent, Federal Maritime Commission. Mr. Irwin A. Seibel, Atty., Dept, of Justice, also entered an appearance for respondent, United States.
Mr. George F. Galland, Washington, D. C., with whom Mrs. Amy Scupi, Washington, D. C., was on the brief, for intervenors. Mr. Robert N. Kharasch, also entered an appearance for intervenors.
Before Wilbur K. Miller, Chief Judge, and Washington and Bastían, Circuit Judges.
WASHINGTON, Circuit Judge.
This case raises questions as to the authority of the Federal Maritime Board to issue restraining orders against a regulated group, pending final determination of complaints made against it.
The order now before us on appeal directs petitioners, the Trans-Pacific Freight Conference of Japan and its members, to refrain from assessing fines against intervenors, States Marine Lines, Inc., and its affiliate, Global Bulk Transport Corporation, or taking any action to collect such fines, pending the final disposition of proceedings which intervenors instituted against the Conference before the Board.
The Conference is a group of steamship companies operating from Japan, Korea and Okinawa to Hawaii and the Pacific Coast ports of North America. Petitioners act in concert in the conduct of their business by authority of an agreement filed with and approved by the Federal Maritime Board pursuant to Section 15 of the Shipping Act of 1916, 46 U.S.C.A. § 814. So long as approved by the Board, such agreements are exempted from the antitrust laws. Petitioner’s Section 15 agreement permits them to combine to fix tariff rates and trade practices, and sets out a code of business practices. It also contains a schedule of monetary penalties, payable to the Conference, for violating various provisions. As a means of enforcement, an amendment to the agreement provides for employment of a “neutral body,” empowered to investigate the complaint of any member line and to impose a fine upon discovery of an infraction of the agreement. One of the offenses for which a fine may be imposed is the refusal of a Conference member to make its business records available to the neutral body on demand.
Intervenors are members of the Conference. On January 13, 1959, the accounting firm of Lowe, Bingham & Thomsons, which was acting as the “neutral body” under the Conference agreement, sought to examine the books of States Marine in Tokyo. Lowe-Bingham claimed that it was acting upon the complaint of a member line that intervenors had engaged in “malpractices” in connection with the 1958 movement of mandarin oranges from Japan. Although the Tokyo office of States Marine acquiesced in the request for examination, intervenors refused to give access to their New York records to Lowe-Bingham’s designee in New York, the firm of Price, Waterhouse & Co. For this refusal, Lowe-Bingham subsequently levied a fine against intervenors in the amount of $10,000, the maximum assessment authorized for a first offense under the Conference agreement. Approximately six months later, on February 22, 1961, Lowe-Bingham claimed that it had received a second complaint relative to alleged misbehavior of intervenors during the 1960 movement of mandarin oranges from Japan, and again demanded access to States Marine’s business records. States Marine again refused and LoweBingham assessed a fine in the amount of $15,000, the maximum for a second offense. After imposition of each of the fines, States Marine gave notice of withdrawal from the Conference, and filed a formal complaint with the Maritime Board. Both complaints prayed, inter alia, that the Conference be enjoined from using Lowe-Bingham as a neutral body, and requested interim relief. The complaints were consolidated, and hearings were held. During the pendency of the hearings, the Board entered an order directing that petitioners show cause why they should not be ordered to cease and desist pendente lite from taking action to collect the second fine and from using Lowe-Bingham as a neutral body, or why “such other order as may be deemed appropriate” should not issue. As provided for in the order, affidavits and memoranda of law were submitted and oral argument was heard. Thereafter, the Board issued the cease and desist order here under review. After stating that intervenors (complainants before the Board) were threatened by Lowe-Bingham and the Conference with irreparable injury, the order in part provides:
“It is Ordered, that from the date of this order and until the Board issues a final order in this proceeding, respondents shall cease and desist: (1) from assessing or collecting any fines against complainants; and (2) taking any action to collect fines heretofore assessed against the complainants * *
Respondents and intervenors contend that the Board’s order is not final and consequently not reviewable under the Administrative Orders Review Act of 1950 (the Hobbs Act), 5 U.S.C.A. § 1031 et seq. But, as we said in the Isbrandtsen case—
“Whether or not the statutory requirements of finality are satisfied in any given case depends not upon the label affixed to its action by the administrative agency but rather upon a realistic appraisal of the consequences of such action. ‘The ultimate test of reviewability is not to be found in an overrefined technique, but in the need of the review to protect from the irreparable injury threatened in the exceptional case by administrative rulings which attach legal consequences to action taken in advance of other hearings and adjudications that may follow, the results of which the regulations purport to control’ Thus, administrative orders are ordinarily reviewable when ‘they impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process.’ Under this test, a final order need not necessarily be the very last order.” (Footnotes omitted.)
Here, during the indefinite period of time which might elapse before the Board issued a “final” order, the Board sought to deny the Conference by the terms of the order the right to assess or collect any fines from intervenors. The issuance of the order was thus intended to deprive petitioners of the most important means of enforcement of the Conference agreement. We believe that an order which so threatens, for an indefinite period of time, to undermine the very functioning of the Conference is “final” for purposes of the Review Act.
This brings us to the question whether the Board has the power to maintain the status quo by the order now under appeal. The Board relies for its authority on Sections 22 and 15 of the Shipping Act, 46 U.S.C.A. §§ 821 and 814. When a sworn complaint has been filed, Section 22 gives the Board power to investigate it “in such manner and by such means, and [to] make such order as it deems proper,” including an order for reparations to the complainant for the injury caused by the violation of the Act. Section 22 must be read in conjunction with Section 23, which provides that orders of the Board relating to any violation of the Act “shall be made only after full hearing • * * We need not decide here whether the “full hearing” contemplated by the statute was held in this ease. We think it clear, however, from both the wording and context of Section 22, that the “order” which the Board may issue under that section is one which must be premised upon a finding of violation of the Act. But no such finding was made by the Board. On the contrary, the only justification advanced for the Board’s order was a finding of “irreparable injury.”
Nor does Section 15 support the Board’s order. That section provides il or the submission to the Board of an “agreement” between carriers or a “modification” of such an agreement. But the action here enjoined (the assessment and collection of fines) does not appear in itself to be an “agreement” or “modification” of an agreement. If it were, Section 15 empowers the Board to disapprove, cancel, or modify the agreement or modification. But nothing is said about enjoining it pending a “final” order. Moreover, the Board may disapprove or modify any agreement that it finds to be “unjustly discriminatory or unfair” (as between certain parties or ports) or that it finds to operate to the detriment of the commerce of the United States, or to be in violation of the Act. But the Board made no findings of this sort and relied, as we have pointed out, only on a conclusion that complainants were threatened with irreparable injury. Thus, neither Section 15 nor Section 22 .supports the order as issued by the Board.
Our conclusion is reinforced by the -administrative interpretation placed on "the Act by the Board. The Shipping Act was passed in 1916. But not until as recently as 1960 has the Board ■ or its predecessors even asserted that it possessed the kind of interim injunctive powers asserted in this case. Pacific Far East Line, Inc. v. Pacific Westbound Conference, -F.M.B.- (Docket No. 915, 1960). In fact, the Board on several occasions expressly disclaimed such authority. See Isbrandtsen Co. v. United States, 81 F.Supp. 544, 547 (S.D.N.Y.1948), appeal dismissed sub nom. A/S J. Ludwig Mowinckels Rederi v. Isbrandtsen Co., 336 U.S. 941, 69 S.Ct. 813, 93 L.Ed. 1099 (1949); West India Fruit & Steamship Co. v. Seatrain Lines, 170 F.2d 775, 776 (2d Cir. 1948). And in the last session of Congress the same Board which issued the order now before us represented to the House Merchant Marine and Fisheries Committee that—
“1. The Board should be given the power to enter cease and desist orders of an interlocutory nature prior to the completion of full evidentiary hearings. * * *
“ * * * the Board should have the power to maintain or restore the status quo upon a prima facie showing of irreparable damage, substantial injury to the public interest, or little likelihood of success on the merits. In this respect, the Board would in general be acting in a fashion similar to that of a court of equity in the disposition of applications for interlocutory injunction.”
Congress has repeatedly demonstrated that it knows how to make an express delegation of authority to issue interim cease and desist orders when it so desires. See, e. g, 15 U.S.C.A. § 45(b) (Federal Trade Commission); 16 U.S. C.A. § 820 (Federal Power Commission); 29 U.S.C.A. § 160(c) (National Labor Relations Board); see' also Shipping Act § 17, 46 U.S.C.A. § 816. Frequently, Congress has expressly provided that an agency can obtain this form of relief by applying to an appropriate District Court. See, e. g., 15 U.S.C.A. §§ 53(a), 68e(b), 69g(b), 70f (Federal Trade Commission) ; 49 U.S.C.A. §§ 5(8), 43 (Interstate Commerce Commission).
The power which the Board now claims is in many ways a drastic one, and in fact more akin to judicial injunctive power than the power which Congress has given some agencies to issue cease and desist orders against conduct deemed in violation of law. The order here is not a directive to comply with existing law or an existing Board regulation. On the contrary, it seeks to prohibit one party (in what is at this stage essentially a private dispute) from enforcing an agreement, previously approved by the Board, made with another private party. But the Board is not a court, and cannot rely for its action on the powers of a court of equity. On the contrary, the law is settled that an administrative agency can exercise only those powers conferred on it by Congress. See, e. g., Civil Aeronautics Board v. Delta Air Lines, 367 U.S. 316, 322, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961); United States v. Seatrain Lines, 329 U.S. 424, 67 S.Ct. 435, 91 L.Ed. 396 (1947); Alaska Airlines v. Civil Aeronautics Board, 103 U.S.App.D.C. 225, 257 F.2d 229 (1958). We will not lightly assume that Congress has attempted to confer injunctive powers on this or any other administrative agency.
Our examination of the statute and the administrative interpretation of it does not support the Board’s contention that Congress has granted it the authority it has here sought to exercise. The order must be set aside. Our decision is, of course, without prejudice to any proceeding which the agency or the intervenors may bring in a court of equity to seek injunctive relief against petitioners. With this possibility in mind, the entry of our judgment will be postponed for fifteen days.
Reversed.
. The Federal Maritime Board, which issued the order under review, has been succeeded by the Federal Maritime Commission. See Reorganization Plan No. 7 of 1961, 26 Fed.Reg. 7315. References to the Board in this opinion should, where appropriate in the context, be deemed to include the Commission.
. States Marine claimed that Lowe-Bingham was not qualified to act as a neutral body under the terms of the Conference agreement because of its relationship with Price, Waterhouse & Co., which also acted as auditor for one of the Conference members.
. Isbrandtsen Co. v. United States, 93 U.S.App.D.C. 293, 297, 211 F.2d 51, 55, cert. denied sub nom. Japan-Atlantic & Gulf Conference v. United States, 347 U.S. 990, 74 S.Ct. 852, 98 L.Ed. 1124 (1954).
. The Board’s order is, of course, a type of injunction. In apparent recognition of the fact that injunctive orders are “final” in the sense that they dispose of the rights of the parties for a period of time, 28 U.S.C. § 1292 (1958), has long provided that the courts of appeals have jurisdiction of interlocutory orders of the district courts granting or refusing injunctions.
. The Hobbs Act gives us exclusive jurisdiction “to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” such final orders of the Federal Maritime Board as “are now subject to judicial review” pursuant to Section 31 of the Shipping Act, 46 U.S.C.A. § 830. Section 31 in turn is based on the procedures available for suspension of orders of the Interstate Commerce Commission under the Urgent Deficiencies Act of 1913, as amended and codified, 28 U.S.C. §§ 1336, 2321-2325 (1958). However, neither the cited statutes nor the decisions interpreting them appear to be of direct aid in solving the problem of finality presented by the instant case.
. 46 U.S.C.A. § 821 (Section 22 of the Shipping Act) provides:
“Any person may file with the Federal Maritime Board a sworn complaint setting forth any violation of this chapter by a common carrier by water, or other person subject to this chapter, and asking reparation for the injury, if any, caused thereby. The Board shall furnish a copy of the complaint to such carrier or other person, who shall, within a reasonable time specified by the Board, satisfy the complaint or answer it in writing. If the complaint is not satisfied the Board shall, except as otherwise provided in this chapter, investigate it in such manner and by such means, and make such order as it deems proper. The Board, if the complaint is filed within two years after the cause of action accrued, may direct the payment, on or before a day named, of full reparation to the complainant for the injury caused by such violation.
“The Board, upon its own motion, may in like manner and, except as to orders for the payment of money, with the same powers, investigate any violation of this chapter.”
. 46 U.S.C.A. § 814 (Section 15 of the Shipping Act) provides:
“Every common carrier by water, or other person subject to this chapter, shall file immediately with the Federal Maritime Board a true copy * * * of every agreement, with another such carrier * * * or modification or cancellation thereof * * * fixing or regulating transportation rates or fares * * * or in any manner providing for an exclusive, preferential, or cooperative working arrangement. * * *
“The Board may by order disapprove, .cancel, or modify any agreement, or any modification or cancellation thereof, ■whether or. not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States .and their foreign competitors or to operate to the detriment of the commerce of the United States, or to be in violation -of this chapter, and shall approve all other agreements, modifications, or can- ■ cellations.
“ * * It shall be unlawful to carry out any agreement or any portion thereof disapproved by the Board.
“All agreements, modifications, or cancellations made after the organization of ■the Board shall be lawful only when and .as long as approved by the Board
. In Pacific Coast European Conference, 5 F.M.B. 65 (1956), the Board asserted the authority to issue a cease and desist order prohibiting the parties from carrying out an unapproved agreement. We need not express a view as to whether such an order is within the Board’s authority. But we do note that different considerations might well be involved in such a case. Cf. Isbrandtsen Co. v. United States, supra, 93 U.S.App.D.C. at 299, 211 F.2d at 57 (action of the Board in issuing order allowing dual rate system agreement to go into effect prior to Board approval field contrary to specific requirements of Section 15 of the Shipping Act).
. Compare note 8, supra.
. Dept. of Commerce letter submitted to House Merchant Marine and Fisheries Committee March 20, 1961, H.R.Rep. No. 498, 87th Cong., 1st Sess., 14, 22.
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_appel2_7_5
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
In re ALL AMERICAN OF ASHBURN, INC., Debtor. John W. GRIFFIN, Robert V. Blanton, Paul J. Hill, Craig Black, Billy Black, Steven L. Ivie, and Hillard P. Burt, Plaintiffs-Appellants, v. Paul W. BONAPFEL, Trustee, Defendant-Appellee.
No. 86-8347.
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Dec. 16, 1986.
C. Nathan Davis, Albany, Ga., for plaintiffs-appellants.
Paul W. Bonapfel, Atlanta, Ga., for defendant-appellee.
Before RONEY, Chief Judge, HILL and KRAYITCH, Circuit Judges.
PER CURIAM:
AFFIRMED on the basis of the district court opinion attached hereto as an appendix.
APPENDIX
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
CHAPTER 11
NO. 83-03719
CIVIL ACTION
NO. C85-4390A ORDER
FORRESTER, District Judge.
This action is before the court on an appeal from a final order and judgment by the bankruptcy court granting permanent injunctive relief in favor of appellee/trust-ee [56 B.R. 186 (1986)]. 28 U.S.C. § 158. In reviewing the order of the bankruptcy court, this court is mindful that the bankruptcy court’s “[findings of fact should not be set aside unless clearly erroneous-” Bankruptcy Rule 8013. This court may make a de novo review of the bankruptcy court’s conclusions of law. Borg-Wamer Acceptance Corp. v. Fedders Federal [Financial] Corp. (In Re: Hammons), 614 F.2d 399,. 403 (5th Cir.1980).
I. STATEMENT OF FACTS.
Having reviewed the record of the bankruptcy court, the court is of the opinion that the bankruptcy court’s findings of fact were not clearly erroneous. Therefore, the court adopts as its findings of fact those facts stated by the bankruptcy court in its order of September 25, 1985. The pertinent facts center upon the commencement of an action by appellants as shareholders of All American of Ashburn, Inc. (All American), the debtor corporation subject to this Chapter 11 proceeding, to recover for the diminution of the value of their stock. Appellants sought to recover against C.I.T. Corporation (CIT) because of
CIT’s fraudulent representations of future financing of All American which allegedly resulted in the destruction of All American’s business and damage to appellants as shareholders. This shareholders’ action was commenced in the Superior Court of Turner County, Georgia, but was subsequently removed in 1985 to the United States District Court for the Middle District of Georgia where it is now pending.
Over two years prior to the commencement of the shareholders’ action, All American filed this petition for bankruptcy under Chapter 11. Appellee/trustee was aware of the potential claim against CIT and negotiated a settlement agreement in the spring of 1985. A settlement agreement was executed on July 8, 1985, providing that funds in the possession of the trustee against which CIT claimed a priority lien would be relinquished to the trustee and the trustee and CIT would share future collections on accounts receivable. CIT released its interest in certain other assets of the estate and relinquished a deficiency claim. In return for the foregoing, CIT received a general release from the trustee of all claims that could be asserted by All American by the appellee/trustee. However, the settlement agreement provided as a condition precedent to its effectiveness that the bankruptcy court enjoin any pending suit against CIT to the extent that such suit asserted claims of All American.
Pursuant to this settlement agreement, appellee/trustee filed a complaint against appellants seeking a permanent injunction against their pursuit of the shareholders’ action. After a hearing on August 19, 1985, the Honorable W. Homer Drake, Jr. entered the following order on September 27, 1985.
ORDERED AND ADJUDGED that the above-named Defendants be, and each of them hereby is, permanently enjoined and restrained from continuing the prosecution of the above-referenced Civil Action in the name or on behalf of All American, or derivatively as shareholders of All American or from asserting a claim or cause of action which is or was a claim or cause of action of All American or the Trustee, or purportedly for the benefit of All American or the Trustee; and it is further
ORDERED AND ADJUDGED that the Defendants be, and each of them hereby is, ordered and directed to dismiss said Civil Action insofar as, and to the extent that said Civil Action is brought in the name or on behalf of All American or the Trustee, or derivatively by any of the Defendants as shareholders of All American or asserts a claim or cause of action which is or was a claim or cause of action of All American of Ashburn, Inc., or the Trustee; and it is further
ORDERED AND ADJUDGED that the Defendants be, and each of them hereby is, permanently restrained and enjoined from commencing any action, suit or proceeding against CIT to the extent that such action, suit, or proceeding is brought by, in the name of, or purportedly on behalf or for the benefit of All American or the Trustee or for the purpose of recovering on any claim or cause of action which is or was a claim or cause of action of All American or the Trustee.
The appellants appealed from this order arguing that the bankruptcy court has no jurisdiction to enjoin actions by individual shareholders.
II. CONCLUSIONS OF LAW.
Appellants do not dispute the authority of the bankruptcy court to protect the estate of the debtor corporation, including “all legal or equitable interests of the debt- or in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1); 11 U.S.C. § 105(a). The only question before this court on appeal is. whether the bankruptcy court exceeded its authority when it enjoined appellants from pursuing what appellants characterize as an action which is not the property of the estate.
The action which appellants commenced against CIT is not an action which they may pursue exclusive of the interest of the debtor corporation. Of course, an appellant’s shareholders’ derivative action belongs to the corporation. See OCGA 14-2-123(a). Denying that their action is derivative, appellants assert that their action is one for the recovery of “damages for the reduced value of their shares in All American.” Appellants’ Brief at 9. This characterization is unavailing in light of the fact that a suit for the recovery of the diminution of the value of the stock caused by the tortious acts of either an officer or director or third person belongs to the corporation. See Dale vs. City Plumbing & Heating Supply Co., 112 Ga.App. 723, 729 [146 S.E.2d 349] (1965); Short vs. McKinney, 111 Ga.App. 557, 560-62 [142 S.E.2d 398] (1965); see generally Fletcher, Cyclopedia of Laws of Private Corporations § 5913 (1984). Appellants’ allegations in the action pending in the Middle District Court that CIT damaged their investment by fraudulently promising financial assistance to All American are allegations of a harm suffered by the debtor corporation. Any recovery which appellants might realize would normally go to the debtor corporation. Id; see also Schnorbach vs. Fuqua, 70 F.R.D. 424 (S.D.Ga.1975). In short, appellants are not distinctly and individually damaged shareholders whose loss can be separated from the loss of the debtor corporation. See Thomas vs. Dixon [Dickson], 250 Ga. 772, 774-75 [301 S.E.2d 49] (1983).
Because the claims of appellants belong primarily to the debtor corporation and because the representative of the debtor corporation has already compromised these claims, appellants were properly enjoined from pursuing an action which is the property of the. debtor’s estate. See Vincel vs. White Motor Corp., 521 F.2d 1113, 1118-19 (2d Cir.1975). Judge Drake did not enjoin appellants from pursuing any action which they may bring in their own name or for their own benefit exclusive of the benefit to the debtor corporation. The bankruptcy court’s order is quite explicit in limiting its effect to civil actions brought on behalf of All American or civil actions asserting claims or causes of action which are the property of All American. The bankruptcy court was acting within its authority to protect the property of the estate.
III. CONCLUSION.
In sum, the order of the bankruptcy court was an appropriate exercise of the court’s power to protect the estate. The bankruptcy court did not purport to enjoin appellants from pursuing any non-derivative claims as shareholders of the debtor corporation. The bankruptcy court’s order was appropriate as applied to the appellants shareholders’ action now pending in the United States District Court for the Middle District of Georgia because such action is the property of the debtor’s estate. For the foregoing reasons, the order of the bankruptcy court is hereby AFFIRMED.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_interven
|
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.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
Helinda JIMENEZ, Appellant, v. UNITED STATES of America, Appellee.
No. 24698.
United States Court of Appeals, Fifth Circuit.
Feb. 9, 1970.
Marian S. Rosen, Clyde W. Woody, Houston, Tex., for appellant.
James R. Gough and Gerald Applewhite, Asst. U. S. Attys., Houston, Tex., for appellee.
Before AINSWORTH and SIMPSON, Circuit Judges, and SINGLETON, District Judge.
ON PETITION FOR REHEARING
PER CURIAM:
Helinda Jimenez was convicted on a two-count indictment charging her with violations of 21 U.S.C. § 174 (1964). Her conviction was based upon her discovered possession of heroin. We affirmed that conviction on June 26, 1968. We withheld a determination on this petition for rehearing pending action by the Supreme Court in two cases. That action has now been taken. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (January 20, 1970); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Neither Turner nor Leary casts doubt upon the validity of the conviction we consider here. The section 174 presumption re-maing viable with respect to heroin. The petition for rehearing is accordingly denied.
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_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NEAL v. UNITED STATES
No. 11177.
Circuit Court of Appeals, Eighth Circuit.
April 3, 1939.
WOODROUGH, Circuit Judge, dissenting.
Harry S. Swensen, of Minneapolis, Minn. (Eugene A. Rerat and John Ott, both of Minneapolis, Minn., on the brief), for appellant.
Victor E. Anderson, U. S. Atty., of St. Paul, Minn. (Linus J. Hammond, Asst. U. S. Atty., of St. Paul, Minn., on the brief), for the United States.
Before STONE, WOODROUGH, and THOMAS, Circuit Judges.
THOMAS, Circuit Judge.
The appellant William Squire Neal, hereinafter called defendant, was indicted, tried and convicted in the court below upon both counts of an indictment containing two counts, and he appeals.
The first count of the indictment charged defendant with being an accessory after the fact to a felony committed by John L. Neal; and the second count charged misprision of the same felony committed by John L. Neal. The defendant was sentenced to serve in a penitentiary for two years on each count, the sentences to run concurrently and not consecutively.
Before trial the defendant interposed a demurrer to count one of the indictment, which was overruled. At the close of.the evidence he moved for a directed verdict upon both counts on the ground of insufficiency of evidence to support a verdict of guilty, which motion was overruled.
On this appeal the defendant urges that the trial court erred (1) in overruling his demurrer to count one of the indictment, (2) in overruling his motion for a directed verdict on both counts, (3) in the admission of certain evidence over his objection, (4) in permitting misconduct of the prosecuting attorney in his argument to the jury, and (5) in giving certain instructions to the jury.
Since the sentences run concurrently,.if the defendant was properly convicted upon either count of the indictment, there can not be a reversal even if there were reversible error on the trial of one of the counts. The defendant in that situation is not prejudiced by the sentence on the count in which the conviction is tainted with error. Roberts v. United States, 8 Cir., 96 F.2d 39, 40; Little v. United States, 8 Cir., 93 F.2d 401, 409; Taran v. United States, 8 Cir., 88 F.2d 54, 59; Mad-delin v. United States, 7 Cir., 46 F.2d 266; United States v. Trenton Potteries Co., 273 U.S. 392. 47 S.Ct. 377, 71 L.Ed. 700, 50 A.L.R. 989.
The alleged error most seriously pressed upon our attention, and the one involving the greatest difficulty, relates to the sufficiency of the evidence to support a conviction upon cither count. If this assignment of error be sustained the court erred in overruling defendant’s motion for a directed verdict and the judgment must be reversed. In that event it will be unnecessary to consider the other alleged errors. This question requires a consideration of the indictment and a review of the government’s evidence.
The defendant and John Neal are brothers. At all times material to this case they lived in Minneapolis, Minnesota. The defendant was married and operated an undertaking establishment. His brother John was a bachelor and lived in defendant’s home. John had been employed as a clerk or messenger in the office of the treasurer of the Soo Line railroad at Minneapolis for 32 years prior to December 28, 1937. In February, 1938, John was indicted in the United States District Court of Minnesota and charged in ten counts with stealing and carrying away various sums of money from the First National Bank and Trust Company of Minneapolis. Pie pleaded guilty on five counts and was sentenced to 15 years in a peniten-' tiary. The indictment was predicated upon the amendment of August 24, 1937, to section 2(a) of the Act of May 18, 1934, 48 Stat. 783, 12 U.S.C. § 588b, 12 U.S.C. A. § 588b. The original statute made bank robbery a crime. The pertinent part of the amendment added: “whoever shall take and carry away, with intent to steal or purloin, any property or money or any other tiling of value exceeding $50 belonging to, or in the care, custody, control, management, or possession of any bank, shall be fined not more than $5,000 or imprisoned not more than ten years, or both.”
The counts of the indictment to which John Neal pleaded guilty and on which he was sentenced charged him with stealing and carrying away from the bank $97.-50. on December 27, 1937; $97.50 on December 24, 1937; $97.50 on December 23, 1937; $95 on December 22, 1937; and $97.50 on December 21, 1937.
The crimes of accessory after the fact and misprision of felony being dependent or subsidiary offenses the indictment upon which the defendant was tried alleged two crimes in each count. John L. Neal is referred to as principal, or the one who committed the primary felony, and the defendant is charged with the dependent offenses. In each count the felony attributed to John L. Neal is that between August 24, 1937 (the date of the amendment to the bank robbery statute supra), and December 28, 1937, he stole and carried away from the possession of the First National Bank and Trust Company of Minneapolis many thousands of dollars.
In the first count the crime of which the defendant is accused is that he knowing that the principal had committed and completed the felony above described became on January 7, 1938, an accessory after the fact thereto in that he aided and assisted the principal in secreting the fruits and proceeds of the felony by clandestinely placing $5,903 of the stolen money in a golf bag in his living quarters, thus suppressing important evidence, to the end that the principal might escape punishment.
In the second count it is alleged that on or about January 7, 1938, the defendant committed the crime of misprision of felony in that with full knowledge of the felony committed by John L. Neal he concealed and failed to disclose and make known such felony as soon as might be to some one of the judges of the United States District Court of Minnesota or to the Attorney General of the United States or to the United States Attorney or to other persons in civil authority. It is further charged that the defendant took two affirmative steps to conceal the crime committed by his brother J ohn: first, he concealed $5,903 of the stolen money in a golf bag at his living quarters; and, second, he altered and expunged from the account books of the Neal Funeral Home operated by him entries showing the investment therein by John L. Neal of the stolen moneys.
To warrant a conviction by the jury on the first count of the indictment the burden was upon the government to establish beyond a reasonable doubt: (1) That John L. Neal, the principal, had committed and completed the felony charged, that is, that between August 24 and December 28, 1937, he had unlawfully taken and carried away from the First National Bank and Trust Company of Minneapolis many thousands of dollars; (2) that the defendant had knowledge that the principal had committed the felony; and (3) that having such knowledge, defendant aided and assisted the principal to escape punishment by suppressing important evidence against him in that he concealed $5,903 which constituted a large part of tfie fruits and proceeds of the offense.
To sustain a conviction on count two for misprision of felony it was incumbent upon the government to prove beyond a reasonable doubt (1) that John L. Neal, the principal, had committed and completed the felony alleged prior to January 7, 1938; (2) that the defendant had full knowledge of that fact; (3) that he failed to notify the authorities; and (4) that he took two affirmative steps to conceal the crime of the principal, viz., (a) he concealed $5903 of the stolen money in a golf bag, and (b) he knowingly altered and expunged from the books of account of the Neal Funeral Home entries showing the investment of John L. Neal therein, which, money so invested was a part of the stolen money.
In brief the evidence introduced by the government to prove the crime of the principal John L. Neal tended to establish the following facts:
John L. Neal, as a clerk or messenger in the office of the Treasurer of the Soo Line railroad company, received a salary of $140 a month. Under its system of doing business the railroad company had its station agents send their daily collections directly to the bank for deposit to the credit of the company, with the exception of rent money which they were instructed to send directly to the treasurer of the company at Minneapolis. The agent before sending the money made a deposit slip in quadruplicate one of which he retained. The money, the original and one copy of the deposit slip were sent directly to the bank and one copy was sent to the auditor of the railroad company. The envelopes containing the deposits were delivered every morning to the teller in the "railroad cage” at the bank. John L. Neal called at the teller’s cage about 10:30 in the morning and obtained the extra copy of the deposit slip and took it to the office of the treasurer of the railroad company where he made a record of receipt by the bank of the deposit after which he turned the deposit slip over to the auditor as notice that the money had been received by the bank. The auditor then returned one copy of the slip to the agent to serve as a receipt to him for the deposit.
In many instances the agents sent rent collections with the deposit to the bank instead of sending such items directly to the treasurer of the company. The rent item was separately enclosed and had an identifying mark on it indicating that it was not for deposit but was for the treasurer of the company. The railroad teller at the bank would turn over the rent items to John L. Neal for delivery to the treasurer when John called at the bank in the morning.
For a period of approximately seven years immediately preceding December 27, 1937, John L. Neal made a practice of telling the bank teller when he made his usual call that of the general deposit received from a particular agent a part thereof, for instance $97.50, was rent money and that it should be turned over to him for delivery to the treasurer. The statement was false, but the teller relying on it would turn over the amount demanded. The money turned over was not taken from the funds remitted by the particular agent "designated, but from money generally on deposit at the cage. The original deposit slip held by the bank would then be changed accordingly but not the copy which Neal took to the treasurer’s office. The money so received by him he kept. He kept an account of the items thus abstracted and covered up his offense by false entries and forged deposit slips. Neal’s record showed that the amount of money thus taken by him over the seven year period amounted to $118,280. The bank’s record showed the amount to be $82,872.50. During the entire year 1937 the amount taken was about $53,000, and after August 24, 1937, approximately $18,000 or $19,000.
John L. Neal had no express authority to withdraw money from the bank, and the teller at the bank had no instructions to turn the money over to him. The defendant claims that both John L. Neal and the bank teller had implied authority to handle the moneys the way they did, but the evidence was not such as to require the jury so to find.
The evidence on the trial of the defendant tended to show that he lived with his family upstairs over his funeral parlor in Minneapolis. His brother John lived with him. In 1935 he had his business incorporated under the name Neal Funeral Home, Inc. He was president, his wife vice president, John L. Neal treasurer, and an employee, Otis Allen, secretary. The defendant treated the business as his own. He paid no salaries to the officers and he handled the money himself. The obligations of the business were in his name, and he owned the home. His income in 1935 was $2,385.46, and in 1936, $2,739.15. Yet he had property in excess of the amount usually owned by one of such moderate income. John furnished the groceries for the family amounting to $75 to $80 a week. He also made investments in the business. During 1935, 1936, and 1937 he contributed to the business the sum of $12,970.71 in various amounts and at various times, and he withdrew during the same period the sum of $3,150, leaving a net balance of $9,820.71.
John L. Neal disappeared on the night of December 27, 1937. About 2:00 a. m. on the morning of December 28, 1937, the defendant found - on the premises $5,903 in paper currency in an old iron box. He removed the money and placed it in an old laundry bag which he placed in his closet. When questioned by officers he admitted finding only $15 of John’s money.
On the evening of December 29, 1937, the defendant called the bookkeeper for the funeral home and employed him to delete John L. Neal’s name from the books. The bookkeeper rewrote about 30 sheets having John L. Neal’s name thereon, omitting the name and substituting other explanations for the items. The rewritten sheets and the originals were turned over to defendant’s secretary Allen on January 31, 1938, but the bookkeeper then took the originals and kept them until February 17, 1938.
The evidence discloses that the defendant knew where John L. Neal was in hiding following December 27, 1937, but although examined frequently by federal investigators denied all knowledge of his whereabouts until in January, 1938. On January 5, 1938, he directed an officer to John’s hiding place, and John was arrested. On January 6, the defendant told thé officers that he had found $5,903 in an old iron box in John’s room and had placed it in a golf bag upstairs in his room.
As applicable to both counts we think there was substantial evidence to support the conclusion of the jury that John L. Neal, the principal, was guilty of the felony charged against him, and that the defendant had knowledge of that fact as alleged in the indictment. There is no claim that the defendant believed or was informed that his brother John earned or had by any honest means obtained the large sums of money which he contributed to the funeral home or from which he paid the family grocery bills. The close relationship between the two brothers precluded ignorance of each others’ resources. His conduct on and after December 28, 1937, and his concealing information of John’s whereabouts were proper subjects for the consideration of the jury, and all the circumstances taken together virtually compelled a finding of guilty knowledge. Kcliher v. United States, 1 Cir., 193 F. 8, 9; McDonald v. United States, 8 Cir., 89 F.2d 128.
The serious question under count one of the indictment is whether there is substantial evidence to support the charge that the defendant aided and assisted the principal to escape punishment by suppressing evidence against him by concealing the $5,903 found in the old iron box in a golf bag. The charge in the indictment is that the defendant concealed $5,903 which constituted a large part of the fruits and proceeds of the offense of the principal and was important evidence against him. The proof does not show when the $5,903 was placed in the old iron box by John. John’s salary was only $140 a month. Over a period of seven years he stole approximately $118,000. During 1937 he stole $53,000 of this sum, and after August 24th of that year he had taken approximately $18,000 of the amount. The money stolen prior to August 24, 1937, did not constitute a federal offense, and the stealing of money prior to that date is not charged to be a crime in the indictment. The defendant’s testimony is that when he opened the iron box on December 28, 1937, the paper money contained in it appeared to be old and was covered with a thick layer of dust. Early in January, 1938, the money was turned over to the officers, and they do not deny defendant’s testimony with reference to its condition. The money consisted of 813 one-dollar bills and $5,090 of five, ten, twenty and fifty dollar bills.
The proof clearly does not tend to show that the $5,903 was a part of the “fruits or' proceeds of the offense” of the principal, that is, that it was money stolen by John after rather than before August 24, 1937. Evidence which is consistent with each of two "hypotheses proves neither, Prudential Insurance Company v. King, 8 Cir., 101 F.2d 990, decided February 25, 1939; and when all of the substantial evidence is as consistent with innocence as it is with guilt, it is the duty of the appellate court to reverse a conviction, Shama v. United States, 8 Cir., 94 F.2d 1, 4; Fulbright v. United States, 8 Cir., 91 F.2d 210; Planing v. United States, 8 Cir., 21 F.2d 508; Wright v. United States, 8 Cir., 227 F. 855. Nor is there any presumption in the absence of proof that the $5,903 was a part of the money stolen after August 24, 1937, rather than that it was a part of the money stolen before that date. United States F. & G. Co. v. Des Moines Nat. Bank, 8 Cir., 145 F. 273, 279.
The government does not deny that the allegations and the proof upon this point do not correspond, but counsel say the variance is not material. Berger v. United States, 295 U.S. 78, 82, 55 S.Ct 629, 630, 79 L.Ed. 1314, is relied upon. The test of a material variance is there stated to be “(1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.” We are of the opinion that the variance in this instance is material and prejudicial. The indictment informed the defendant that the government would prove that the $5,903 was a part of that stolen after August 24, 1937, and not that it might be a part of that taken sometime during the preceding seven years. The defense, had it been alleged that the $5,903 was a part of the money taken before that date, would be altogether different from the defense if it were alleged that it was taken afterwards. Even though the description were unnecessary in the indictment it devolved upon the government to prove it as laid. Potter v. United States, 155 U.S. 438, 445, 15 S.Ct. 144, 39 L.Ed. 214.
It is insisted further that the indictment charges that the $5,903 found in John’s room after his disappearance on December 28, 1937, constituted evidence admissible against the principal, had he been tried for the felony charged against him, and that it is therefore admissible against the defendant. This theory would regard the allegation that the money was the fruit of the offense as surplusage. It fails also to distinguish between admissibility of evidence against the principal and evidence which constitutes substantial proof of the dependent offense.
This argument is sufficiently plausible and important, however, to make it expedient to examine the question of whether or not, were the record on the trial of the principal the same as the record in this case, the $5,903 found in the iron box would be relevant evidence against him.
The general rule in favor of the admission of such evidence is stated thus in 36 C.J. 894: “When money has been stolen and the evidence against the accused is largely circumstantial, it has been held proper to admit in evidence * * * as showing a possible motive for the crime. * * * The possession by accused of money immediately or shortly after the theft * * * and for stronger reason is such evidence admissible when there is proof both of the impecuniosity of accused before the larceny and the possession by him of considerable money for a person in his circumstances immediately afterward, as such a sudden accession of wealth by defendant, contemporaneous with the larceny of money, tends strongly to connect him with the crime. To contradict this evidence accused may show that he had money just prior to the theft. sf! Jjs C»
In short the evidence of possession of a large sum of money by the defendant immediately after a theft raises a presumption of fact that the money found is a part of the stolen money and that the defendant was connected with the theft. Under this general rule the foundation for the introduction of such evidence includes proof of (1) the “impecuniosity” of the defendant just before the theft, (2) and the “sudden accession” of wealth (3) contemporaneous with the theft. O’Shea v. United States, 6 Cir., 93 F.2d 169; People v. Connolly, 253 N.Y. 330, 171 N.E. 393; Davis v. Commonwealth, 154 Ky. 774, 159 S.W. 607; Perrin v. State, 81 Wis. 135, 50 N.W. 516; 17 R.C.L. p. 68. down by the Supreme ther burden upon the government ing some necessary or natural connection between the sums in defendant’s possession and those he is charged with taking. Williams v. United States, 168 U.S. 382, 396, 397, 18 S.Ct. 92, 97, 42 L.Ed. 509. In the cited case the defendant was convicted under an indictment charging extortion. Evidence was introduced under the general rule stated above showing that during the period of about three months when the extortions were taking place the defendant deposited in the bank $4750 although his salary was only $140 a month. In reversing the judgment of conviction, in connection with the statement of the rule quoted above, the court observed that “no sum so deposited corresponded in amount with the sums which he was charged with having extorted.” This case is criticized by Prof. Wigmore in 1 Evidence § 154, where he states the rule thus: “Another mode, however, of making the fact of money-possession relevant is to show its sudden possession i.e. to show that before the time of taking the person was without money, while immediately after that time he had a great deal; this reduces the hypothesis to such as involve sudden acquisition, and a dishonest acquisition thus becomes a natural and prominent hypothesis. On such conditions the possession of unidentified money becomes relevant.” The rule laid Court adds the fur-of show-
Upon the trial the government introduced facts in evidence in this case which destroy the presumption of fact and render the finding of the $5,903 irrelevant. While it was shown that the principal, John L. Neal, was receiving a salary of only $140 a month it was also shown that during the preceding seven years he had in addition to his salary received approximately $100,000, and that during the 9 months preceding August 24, 1937, his income had been approximately $200 a day. Here was no sudden acquisition of wealth after August 24th. It is true his large income prior to that date was the result of stealing, but such stealing was not a federal crime; and his possession of $5,903 after August 24th, without proof of acquisition after that date, would not raise a presumption that its acquisition was unlawful, or that it was a part of the fruits of his federal offense.
As the record stood at the close of the evidence there was no relevant evidence to support a verdict of guilty on count one of the indictment. The defendant’s motion as to this count should have been sustained.
The second count of the indictment charges an offense under Title 18 U.S.C.A. § 251 (Cr.Code § 146), which provides that: “Whoever, having knowledge of the actual commission of the crime of murder, or other felony cognizable by the courts of the United States, conceals and does not as soon as may be disclose and make known the same to some one of the judges of other persons in civil or military authority under the United States, shall be fined not more than $500, or imprisoned not more than three years, or both.”
The elements of the offense under the statute are two: There must be (1) a concealment of something such as suppression of the evidence or other positive act and (2) a failure to disclose. Proof of one of the elements only, and not of both, is not sufficient to support a conviction. Bratton v. United States, 10 Cir., 73 F.2d 795, 797; United States v. Farrar, D.C.Mass., 38 F.2d 515, 517. The sufficiency of the charge is not assailed, but it is claimed that defendant did not fail to disclose “as soon as may be”; that he did in fact as shown by the government’s evidence disclose all that he knew on the fourth, fifth and sixth of January, 1938. The evidence also shows that he made no disclosures until after he had been frightened into doing so by the federal officers who were investigating the crime. He might have given them such information on the 28th of December, 1937, but instead of doing so he “threw dust in their eyes” when they interviewed him and gave them misleading information. Under the evidence it was a question for the jury to determine whether he made the disclosure “as soon as may be” to satisfy the requirements of the law.
We next consider the charge in the indictment that the defendant did two affirmative acts to “conceal” the crime of the principal. The first act charged was that he concealed $5,903 in a golf bag, “which moneys unlawfully and feloniously had been taken and carried away by the said John L. Neal, with intent to steal the same, from the possession of” the bank; and, second, that he knowingly altered and expunged from the books of account of the Neal Funeral Home entries showing the investment of moneys by John L. Neal, which moneys had unlawfully been taken and carried away from the possession of the bank by John with intent to steal the same.
The first alleged act, that the defendant concealed $5,903 of the money stolen by John L. Neal between August 24 and December 28, 1937, is not, as shown above, supported by the evidence.
Neither is the second alleged affirmative act of the defendant to conceal the crime of John L. Neal supported by substantial evidence. That charge is that the defendant expunged from the books of the funeral home the entries showing John L. Neal’s investment of the stolen moneys in that business. There are only two entries in the books showing investments of John L. Neal in the funeral business after August 24, 1937. One of these shows that on October 15, 1937, he “advanced” $125 and the other that on October 19th he “advanced” the further sum of $100. There is. no evidence whatever connecting these sums with the money unlawfully taken and carried away from the bank; and the amount is not sufficient to raise a presumption of fact that they were not honest savings from- his salary.
The basis in the evidence upon which the charge is founded is that the defendant did on December 29, 1937, instruct the bookkeeper to delete John L. Neal’s name from the entries in the books. His name or his initials appeared in connection with certain entries on about 30 different sheets of the books. The bookkeeper took these sheets home with him and copied them substituting for the name or initials of John L. Neal other explanations such as “administration fees” or “W. Squire Neal.” He returned them to the office of the funeral home on December 31, 1937, and delivered them to Otis Allen. He then took the original sheets home with him without the defendant’s knowledge and made a second copy for himself. The originals were returned to the office on February 17, 1938, and placed in the books, where they remained and were produced at the trial unaltered. The defendant did not direct that the original sheets be destroyed, although the bookkeeper suggested that they be burned. An intent to conceal from the government, i'f such intent existed, that is not carried out is not an offense under the statute.
The government argues that for a few days after December 27, 1937, the defendant aided in concealing John L. Neal, and that he is therefore guilty of misprision of felony. The evidence shows that he did know where John was in hiding and may have advised with him about escaping; but failure to inform the officers is not sufficient alone to constitute a crime under the statute. Bratton v. United States, supra.
The government having failed to produce any competent evidence to sustain one of the essential elements of the offense charged in count two of the indictment the motion for a directed verdict should have been sustained as to that count also.
Because the evidence fails to support the charges in each count of the indictment the 'judgment is reversed and the case remanded with instructions to grant a new trial.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
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".
The HICKS CO., INC., etc., Petitioner, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Appellee. Thomas WHEELER et al., Petitioners, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Appellee. Thomas WHEELER, Petitioner, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Appellee.
Nos. 72-1058 to 72-1060.
United States Court of Appeals, First Circuit.
Heard Oct. 3, 1972.
Decided Dec. 6, 1972.
John M. Doukas, Boston, Mass., for appellants.
Murray S. Horwitz, Atty., Tax Division, Department of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, and Richard W. Perkins, Attys., Tax Division, Department of Justice, were on brief, for appellee.
Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
CAMPBELL, Circuit Judge.
Thomas and Shirley C. Wheeler and The Hicks Company, Inc. (hereafter collectively “taxpayers”) appeal from the Tax Court’s decisions 56 T.C. 982, upholding the Commissioner’s determination of unreported income, federal income tax deficiencies and fraud penalties.
No liability for a fraud penalty was assessed against Mrs. Wheeler. 26 U.S. C. § 6653(b) (Supp.1972).
The Hicks Company, Inc. (which for a period after July 22, 1958 was known as The Lynn Corporation, and is hereinafter referred to as “Lynn”) is a Massachusetts corporation. It filed income tax returns for each of the taxable years ending on July 31, of 1957, 1958 and 1959. During those years Thomas Wheeler was its sole stockholder, its president, treasurer and a director. He set its policies, directed its activities and made the necessary management decisions.
Thomas Wheeler and his second wife, Shirley, filed joint income tax returns for each of the years 1957 through 1959 (and an amended 1959 return several years later). Thomas Wheeler also filed a joint return for the year 1956 with his first wife, Ruby.
These proceedings are concerned with alleged deficiencies and fraud with respect to taxes shown in each of the foregoing returns.
We are satisfied from our review of the record and of the Tax Court’s detailed findings regarding each of the alleged tax deficiencies that the former affords substantial support for the latter. We agree with the appellee that it is not sufficient for the taxpayers to show that other and different findings might have been made on the same evidence. “To draw inferences, to weigh the evidence and to declare the result” was the function of the Tax Court. Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 938, 82 L.Ed. 1346 (1938), rehearing denied, 305 U.S. 669, 59 S.Ct. 56, 83 L.Ed. 434 (1938).
We are further satisfied that the Commissioner more than met his burden before the Tax Court of proving by clear and convincing evidence that the deficiencies were due to fraud with intent to evade taxes. We find nothing to add to the Tax Court’s careful analysis of the evidence and its warranted and, indeed, virtually inescapable conclusions therefrom.
Accordingly, we proceed to what we believe to be the crucial issue presented on this appeal: namely, the Tax Court’s receiving into evidence of an official transcript of the sworn testimony of Raymond L. White, a major prosecution witness at the 1964 trial of Thomas Wheeler on criminal charges of wilful evasion of the payment of income taxes. Criminal No. 63-163-F (U.S.D.C., Mass.) Wheeler was convicted in the district court on four counts; he appealed; and this court reversed, set aside the verdict, and remanded for a new trial. Wheeler v. United States, 351 F.2d 946 (1st Cir. 1965). The reversal resulted from our ruling that the district court had committed harmful error when it refused to permit Wheeler’s counsel (who now represents all three taxpayers in the present case) to ask White, on cross examination, “have you claimed or will you claim an informer’s reward in this case?” We held that exclusion of the question improperly infringed upon Wheeler’s right of cross examination.
Thirteen months after our decision, Thomas Wheeler pleaded nolo contendere to the four counts upon which he had been originally tried, was adjudged guilty, and was fined, terminating the criminal case without a new trial. The witness, Raymond L. White, thereafter became mentally incompetent. When in 1970 the present cases were tried before the Tax Court, he was 72 years old, had been confined for two years in a Veterans Administration Hospital, and was certified by the Hospital’s Chief of Staff to be incompetent and unable to testify.
The taxpayers do not now question that White was permanently unavailable. They concede that if there were sufficient identity of parties and issues between the former and the present proceedings, and if Thomas Wheeler’s right to cross examination had been fully protected at the former trial, the transcript would be admissible. See Mattox v. United States, 156 U.S. 237, 244, 15 S.Ct. 337, 39 L.Ed. 409 (1895). California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). But they contend that his former testimony is inadmissible because of the absence of those crucial qualifying factors.
We reject taxpayers’ contention that there was insufficient identity of parties and issues. Absolute identity is not required. What must exist — and we believe existed here — is sufficient identity of issues to ensure that cross examination in the former case was directed to the issues presently relevant, and that the former parties were the same in motive and interest. 5 Wigmore, Evidence, § 1386 (3rd Ed. 1940).
The first count1 in the criminal indictment against Wheeler was for willful evasion of tax by him and his wife in 1957. It related to the same tax, and raised substantially the same issues, as do the present assertions of deficiency and fraud for that year. The constituent elements of criminal tax evasion and of civil tax fraud are identical. Moore v. United States, 360 F.2d 353, 356 (4th Cir. 1965).
The other three criminal charges were for Wheeler’s willful evasion of Lynn’s 1957, 1958 and 1959 taxes. While Lynn was not a party as such, Wheeler had been its principal officer and in total control of Lynn. The criminal charges against Wheeler for evasion of Lynn’s taxes presented issues essentially similar to those raised by the present assertions of fraud and deficiency for the same taxable years against Lynn directly.
Thus we find adequate identity of parties and interest.
Taxpayers’ remaining point, that excluding the question about informer’s reward rendered the cross examination incomplete, is a more serious one. But under all the circumstances we think that thé Tax Court did not err by admitting the former testimony.
White’s testimony at the criminal trial is contained in just under 300 pages of transcript of which nearly 200 pages are of cross examination. The cross examination was vigorous. Its only obvious deficiency was the erroneous exclusion by the court, over counsel’s objection, of the question whether White had claimed or would claim an informer’s reward. The trial court stated that there had been “no foundation for the fact that he was an informer”, and invited an offer of proof. Wheeler’s attorney then stated, though without providing substantiation, “If allowed to answer, the answer would be ‘yes’.” He then proceeded with his examination.
In holding the court to have erred, we said that White was the Government’s principal witness, that he had been employed by Wheeler and by various corporations with which Wheeler was connected, and that had the jury known he planned to claim a reward in the event of Wheeler’s conviction, the probative value of his testimony would be weakened. Wheeler v. United States, supra, 351 F.2d at 947. We indicated that no further foundation was required to ask a question bearing so obviously upon such a witness’s credibility.
The Government argues for admissibility on two grounds: that new evidence produced before the Tax Court shows that White was not an informer and did not, in fact, claim a reward; and that greater leeway is traditionally afforded to courts in non-criminal jury-waived trials to receive evidence.
The evidence before the Tax Court tending to show that White had not been an informer was as follows: Special Agent Dougherty of the Internal Revenue Service testified to seeing and meeting an anonymous informant in the Wheeler case in June, 1959. Upon being shown White’s picture, he testified that White was not the informant. Another I.R.S. employee testified that he was the custodian of the only informant’s claim file in Massachusetts, and that a search revealed no claim for reward by White or any one else relative to persons and corporations in this case. Finally, Special Agent Ansbigian testified that he was assigned to investigate the taxpayers on September 24, 1959, and has since supervised the investigation and been involved with the case to the date of the present Tax Court trial. He disclaimed any knowledge of White’s being an informer, and testified to efforts made by White, during the initial investigation, to cover up certain incriminating matters.
The foregoing evidence does not, of course, squarely meet taxpayers’ argument that the cross examination of White was and remains incomplete. It does, however, provide strong grounds from which to infer now that exclusion of the question could not be harmful to Wheeler and the other taxpayers. It is difficult to believe that White would have intended to claim a reward without his informer’s status being known at least to Ansbigian, the I.R.S. agent in charge of the case or to Dougherty; or without the claim (if made) appearing in the file.
While the deficiency in cross examination was originally serious enough for us to reverse Wheeler’s jury conviction, we think it appropriate, in light of the new evidence making it most improbable that White was an informer or had claimed or would claim a reward, to make a fresh evaluation, for purposes of the present non-jury proceeding, of the harmfulness of the trial court’s initial error. Plainly former testimony, to be admissible even in a civil non-jury trial, must have included a reasonable opportunity to cross examine. McCormack on Evidence (2nd Ed. 1972), § 255. However, we live in a real world where choices between imperfect alternatives must be made. White is now unavailable. We must decide whether the single imperfection in his cross examination was so harmful to the appellants as to require the exclusion of vital and detailed testimony by a key witness who, but for this matter, was subjected to the most searching and extensive cross examination. Not only is there now uncontradicted evidence irom which to infer that the informer issue was without basis, but we are considering the use of White’s testimony by an experienced Tax Court judge in a civil proceeding, not by a jury in a criminal case. The Tax Court was on notice of the contention that White might have been seeking an informer’s reward. It could consider and, if it so desired, could even assume that possibility together with other facts (including the considerable volume of evidence corroborative of many aspects of White’s testimony) in deciding White’s overall credibility.
We say, in brief, that the adequacy of cross examination must be viewed in light of the present proceedings as a whole, not in isolation. Were we to believe that the original error carried with it any substantial possibility of affecting the outcome of these proceedings, we would not hesitate to reverse.
But on the entire record, the erroneous exclusion of the informer question from the otherwise complete cross examination seems insufficiently prejudicial for us to conclude that reasonable opportunity to cross examine was denied. The transcript was properly admitted.
Taxpayers object to the Tax Court’s admission of White’s signed statement (or affidavit) dated November 19, 1959 given to, and authenticated at the trial by Special Agent Ansbigian. The statement lists certain checks as drawn by White in 1957 and recorded in the cash disbursement journal of Lynn. White was the assistant treasurer of Lynn from 1957 through 1959. He maintained Lynn’s books and records and was in charge of Lynn’s accounting, office personnel and general office work during the period. Thomas Wheeler had authorized White to cooperate with Ansbigian after the investigation had commenced in 1959, and he was aware that Ansbigian was being furnished books, records and tax data in November of 1959. The statement was properly received. It was an admission against Lynn and Wheeler made by their agent concerning a matter within the scope of his then existing agency. See Joseph T. Ryerson & Son, Inc. v. H. A. Crane & Brother, Inc., 417 F.2d 1263, 1269 (3rd Cir. 1969). McCormick on Evidence (2d Ed., 1972), § 267. See also Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates (March 1971), Rule 801(d)(2) and comments.
Taxpayers also object to White’s question and answer transcript of February 19, 1960, which the Tax Court, after excluding at the trial, referred to in an opinion footnote as having been relied upon “in making some of our findings of fact.” The Government argues that the transcript was admissible on the same theory as White’s affidavit. Alternatively it argues that it was merely cumulative. We agree at least with the latter point. Whether or not actually considered by the Tax Court, it could scarcely have affected the outcome as White’s statements therein concerning matters material to the Tax Court’s findings were repeated in White’s own testimony and in the testimony of Special Agent Ansbigian.
Affirmed.
. The Commissioner found, and the Tax Court affirmed, the following deficiencies and penalties:
Taxable Year Ended
The Hides Go. Inc. Income Tax Deficiency
Addition to Tax for Fraud
July 31, 1957 $14,174.52 $ 7,087.26
July 31, 1958 23,495.25 11,747.63
July 31, 1959 37,216.42 18,608.21
Taxable Year Ended
Thomas and Shirley Wheeler Income Tax Deficiency
Thomas Wheeler Addition to Tax for Fraud
Dec. 31, 1957 $18,050.14 $ 9,724.64
Dec. 31, 1958 2,264.29 1,132.14
Dec. 31, 1959 1,417.80 3,631.80
Taxable Year Ended
Thomas Wheeler Income Tax Deficiency
Thomas Wheeler Addition to Tax for Fraud
Dec. 31, 1956 $ 3,351.46 $ 1,675,73
. Wheeler’s conviction was on one count alleging the willful evasion of the payment of federal income taxes due and owing to the United States by him and his wife for the year 1957, and on three counts of willful evasion of tax due and owing by S. D. Hicks & Son Co., and Lynn for the years ended July 31 of 1957, 1958 and 1959. (Lynn and S. D. Hicks & Son Co. were one and the same, the lattei*’s name having been changed to the former on July 22, 1958.)
. We are not troubled by the fact that Mrs. Wheeler was not a party to the criminal proceeding. Xo fraud penalty has been asserted or found as to her, and her interest was and is in no respect divergent from her husband's.
. There is no merit to taxpayers’ assertion that the district court’s refusal to hold AA’hite, after completion of direct and cross examination, “in the custody of the court” so that counsel could call him later as AVheeler's own witness further vitiated the former testimony. AVliite was a resident of the district, anil could have been summonsed had Wheeler's counsel so desired. There is no evidence that any attempt was made to recall him.
. The Government urges that Civil Rule 43(a) announces a policy of inclusion rather than exclusion of probative evidence.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
In re FORSTNER CHAIN CORPORATION, Petitioner. FORSTNER CHAIN CORPORATION v. MARVEL JEWELRY MFG. CO.
Nos. 4421 Orig., 4425.
United States Court of Appeals First Circuit.
Nov. 10, 1949.
See, also, 82 F.Supp. 243.
Nathaniel Frucht, Providence, R. I., for petitioner, appellant.
James J. Corrigan, Providence, R. I., for intervenor, appellee.
Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and CLIFFORD, District Judge.
MAGRUDER, Chief Judge.
No. 4425 presents an unusual situation. The appeal is from a ruling or order denying a motion to enter final judgment dismissing a complaint in a patent suit, this motion having been made by the losing plaintiff, Forstner Chain Corporation, on the theory that the granting of such motion was a prerequisite to the taking of an appeal. At first blush, an order of this sort might seem not to be a “final decision” appealable under 28 U.S.C.A. § 1291. Under the special circumstances, which we shall summarize below, we hold that the order is a “final decision”. However, on the merits, we have concluded that the appeal must fail.
In No. 4421 Original, Forstner Chain Corporation sought as a cautionary measure to bring the same question to us by another procedural road, namely, a petition for a writ of mandamus directed to the district judge. We granted leave to file the petition and directed respondent to show cause why a writ of mandamus should not issue requiring respondent to order entry of a final judgment in the aforementioned patent suit. Respondent filed his return, showing cause. Marvel Jewelry Mfg. Company, defendant in the patent suit, and appellee in No. 4425, obtained leave to intervene in the mandamus proceedings and filed an answer to the petition. We shall dismiss the petition for a writ of mandamus, in view of our conclusion that the remedy of appeal is available to petitioner and has been properly availed of in No. 4425.
The complaint in the patent suit filed June 9, 1947, by Forstner Chain Corporation sought relief by way of injunction and an accounting for infringement of U.S. Letters Patent No. 2,401,297. In reply to defendant’s motion for further particulars, plaintiff stated that its reliance was upon Claim 1 of the patent as being infringed by a certain described bracelet manufactured and sold by defendant. On February 1, 1949, the district judge filed in the office of the clerk a document entitled “Opinion”, reaching the conclusion that Claim 1 of the patent was invalid for lack of invention. At the very end of this “Opinion” appeared the following language: “Judgment may be entered for the defendant for costs.” D.C., 82 F.Supp. 243, 248. No separate formal document labeled “Judgment” or “Final Decree” was prepared and filed either by the district judge or by the clerk. However, under date of February 1, 1949, the clerk made the following notation at the appropriate place in his civil docket: “Opinion filed. (Copy given to Nathaniel Frucht, Esq. and James J. Corrigan, Esq.) Judgment entered for the defendant for costs. (Notice of entry of said judgment mailed to Nathaniel Frucht, Esq. and James J. Corrigan, Esq.)”
A deputy in the office of the clerk testified that on February 1, 1949, he mailed notices to the attorneys for both parties reading: "In accordance with Rule 77(d) of the Fedéral Rules of Civil Procedure you are hereby notified that judgment has been entered in the above entitled cause. Neale D. Murphy, Clerk”; and that neither of said notices had come back to the clerk’s office undelivered. It appears that the attorney for the defendant received such notice; but the attorney for the plaintiff testified that the notice was not received by him either through the mail or otherwise. However, it is provided in Rule 77(d), 28 U.S.C.A., that mailing of such notice by the clerk “is sufficient notice for all purposes for which notice of the entry of an order is required by these rules”. And further: “Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73(a).” The latter rule provides that “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.” Such a motion for a 30-day extension was made by plaintiff, and denied by the district judge on the ground that there had been “no showing of excusable negligence based on failure of plaintiff learning of judgment.” The denial of this motion is not before us for review; nor are we, for present purposes, concerned with whether plaintiff’s counsel actually received the notice of entry of judgment or not.
On March 17, 1949, plaintiff filed a motion “that the Court approve the attached final Decree.” This proposed final decree, after the usual preliminary recitals, ordered, adjudged and decreed that “Claim 1 of U. S. Letters Patent No. 2,401,297 is invalid”; that “The complaint is dismissed” ; and that “Costs be awarded to the defendant.” After hearing on this motion, the court on March 21, 1949, denied the same, on the ground that final judgment in the case had already been duly entered on February 1, 1949, and that the time for taking an appeal had expired.
The present appeal is from the order of the district court denying plaintiff’s aforesaid motion to enter final judgment.
There is first the question whether the order appealed from is a “final decision” within 28 U.S.C.A. § 1291. The requirement of finality, as embodied in that section, is based upon a strong general policy against allowing piecemeal appeals. But here, from the point of view of the district judge he had already finally disposed of the case, and the motion to enter final judgment called upon him to do a superfluous and meaningless act. His denial of the motion had the element of finality, because he was through with the case and did not, after denying the motion, reserve jurisdiction for the purpose of adjudicating further questions yet undetermined. If the present appeal is entertained by us, it will not be of the piecemeal variety, with the prospect of subsequent appeals from orders or judgments issued by the court below at later stages in the proceeding. This is certainly true, if we should affirm the order on the merits. If we should reverse the order, accepting appellant’s view that no final judgment in the patent suit has been rendered or entered, then the case would have to be remanded for entry of such final judgment, and no doubt would come back to us on appeal therefrom. The latter consideration has given us some pause, for, on appellant’s premise that the district judge has not completed final action in the patent case, does it not logically follow that the order appealed from necessarily is interlocutory? But upon the whole it seems more sensible to test the finality by what the district judge thought he was doing. In the order now appealed from he made what he must have regarded as the proper disposition of the plaintiff’s motion, and in that view there were no further proceedings in the case to be had before him. If he should be told on appeal that his order denying the motion was erroneous, and upon reversal and remand should find the case back in his lap for further proceedings, that is no more than happens in any case of a final judgment which is upset on appeal—it was “final” enough to be appealed from, but like the “permanent” wave, it lasted only six months. We have had that experience with final judgments of our own which were reversed by the Supreme Court.
In respect of finality, the order appealed from is not unlike an order denying a motion under Rule 35, Federal Rules of Criminal Procedure, 18 U.S.C.A., for correction of an allegedly illegal sentence, a type of order which we held appealable, as a “final decision”, in Ekberg v. United States, 1 Cir., 1948, 167 F.2d 380. It is also not unlike the order we held appealable in Parker v. United States, 1 Cir., 1946, 153 F.2d 66, 69, 163 A.L.R. 379.
For the foregoing reasons, we think we have jurisdiction in the present case, and we proceed to consider the merits.
Appeals may be taken under 28 U.S.C.A. § 1291 only from “final decisions”. The word “decision” is equivalent to “judgment”, broadly defined in Rule 54(a) as including “a decree and any order from which an appeal lies.” Ex parte Tiffany, 1920, 252 U.S. 32, 36, 40 S.Ct. 239, 64 L.Ed. 443. Appeal may not be taken from an opinion as such; nor even from a judgment, until it is “entered”, for Rule 58 provides that “the judgment is not effective before such entry”, and under the presently applicable provision of Rule 73(a), “the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from”. What is meant by “entry” of the judgment is stated in Rule 58: “The notation of a judgment in the civil docket as provided by Rule 79(a) constitutes the entry of the judgment”. The provision of Rule 79(a) thus referred to requires the clerk to make a notation of “the substance of each order or judgment of the court”, showing the date on which such notation is made, on the folio of the civil docket assigned to the action and marked with its file number. Rule 79(b) requires the clerk also to keep “a correct copy of every final judgment or appealable order” in such form and manner as the Director of the Administrative Office shall prescribe.
The foregoing provisions of the rules differentiate between a judgment and the “entry” of the judgment, with the implication that the judgment must pre-exist before the clerk can perform the clerical ■or ministerial act of entering it.
As stated in Commissioner of Internal Revenue v. Bedford’s Estate, 1945, 325 U.S. 283, 286, 65 S.Ct. 1157, 89 L.Ed. 1611: “A judgment ‘is the act of the court’, Ex parte Morgan, 114 U.S. 174, 175, 5 S.Ct. 825, 29 L.Ed. 135, even though a clerk does all of the ministerial acts, as here, in conformity with his court’s standing instructions.” A final judgment is the concluding judicial act or pronouncement of the court disposing of the matter before it. But neither by statute nor by rule is there a requirement that judgment be pronounced in any particular way, or embodied in written form in a separate formal document entitled “Judgment”. See United States v. Hark, 1944, 320 U.S. 531, 534, 64 S.Ct. 359, 88 L.Ed. 290. Whether such a judgment has been rendered depends primarily upon the intention of the court, as gathered from the record as a whole, illumined' perhaps by local rule or practice. Commissioner of Internal Revenue v. Bedford’s Estate, supra.
A judgment may be pronounced orally from the bench. Thus if the judge should say, “It is the judgment of the court that the complaint in this case be dismissed”, that statement may be meant as the final judicial act, the rendition of judgment; and when the clerk, pursuant to ad hoc or standing instructions, later notes such judgment, or the substance of it, in the civil docket, the time for talcing an appeal commences to run. An opinion is not itself a judgment, even though it contains conclusions of fact or of law, and foreshadows how the judge intends to dispose of the case. Not infrequently, however, there is tacked on at the end of an opinion a sentence in mandatory language such as.: “The complaint is dismissed.” In the understanding and practice of the particular court, this concluding sentence may be the final judgment, the concluding judicial act or pronouncement disposing of the case, to be entered by the clerk forthwith. But not necessarily so. See Commissioner of Internal Revenue v. Bedford’s Estate, supra, 325 U.S. at page 286, 65 S.Ct. at page 1158. If it is the practice of the court to pronounce judgment in a more formal manner, in a separate document entitled “Judgment”, then the concluding sentence at the end of the opinion amounts to no more than a direction to the clerk for the preparation of the final judgment on behalf of the court; the formal judgment will then be signed or initialed by the judge or issued in the name of the court under the attestation of the clerk (whatever is the local practice), and not until then will the clerk make the entry of the judgment in the civil docket in accordance with Rule 79(a).
In the case at bar, the judge said at the end of his opinion: “Judgment may be entered for the defendant for costs.” Since this was a case in which the judge had decided to deny all relief to the plaintiff, it is clear under the local practice that the judge did not have in contemplation any subsequent judicial act of pronouncing judgment in a more formal manner. The sentence quoted does not direct the clerk to prepare a form of judgment for the judge to sign; it is at once the judgment itself (the final judicial act pronouncing the disposition of the case) and a direction to the clerk to enter such judgment without more. The judge and clerk were following a procedure specifically sanctioned by Rule 58: “When the court directs that a party recover only money or costs or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction; but when the court directs entry of judgment for other relief, the judge shall promptly settle or approve the form of the judgment and direct that it be entered by the clerk.” We have examined the cases cited by appellant, In re D’Arcy, 3 Cir., 1944, 142 F.2d 313; St. Louis Amusement Co. v. Paramount Film Distributing Corp., 8 Cir., 1946, 156 F.2d 400; St. Louis Amusement Co. v. Paramount Film Distributing Corp., 8 Cir., 1946, 158 F.2d 30. While not necessarily agreeing with all the language in the opinions in these cases, we think they were decided correctly on their facts and are not inconsistent with the view we take in the present case. In each of the cases cited, even though, as we think, a final judgment may have been pronounced by the judge, there was still the further difficulty that the clerk had failed to make due entry of such judgment as required by Rule 79(a), so that the appeal was premature. In Wright v. Gibson, 9 Cir., 1942, 128 F.2d 865, 866, also cited by appellant, a written opinion on motion to dismiss concluded with the statement, “The motion * * * is granted.” The clerk entered a notation that an opinion had been filed and that pursuant thereto the motion was granted. We agree with the court that no final judgment had been entered in the case, though not on the ground that the concluding sentence of the opinion could not be a judgment or order. It seems to us that such sentence constituted an order, but that it was an interlocutory one, because, as the. court noted later in its opinion : “An order which merely grants a motion to dismiss an action is not a final decision and is not appealable.” The reason is, as pointed out in City and County of San Francisco v. McLaughlin, 9 Cir., 1925, 9 F.2d 390, that the mere granting of a motion to dismiss amounts to no more than a determination on the part of the court that the complaint is open to one more of the objections urged against it, but the action remains pending, with the complaint open to the possibility of amendment, until the entry of a final judgment dismissing the complaint.
Appellant’s final -and perhaps most insistent point is that “Judgment for the defendant for costs” is not a final adjudication of the merits. Rule 54(d) provides that “costs shall he allowed as of course to the prevailing party unless the court otherwise directs”. This means that the court has a wide discretion in awarding costs; it may withhold costs from either party, or divide the costs, or even, in appropriate circumstances, award costs to the losing party. The argument, therefore, is, that the judgment rendered and entered here does no more than adjudicate the subsidiary question of the awarding of costs, leaving the merits of the claim for patent infringement undetermined.
We think the foregoing argument is an over-refined technicality, at variance with the manifest intention of the district judge, as may be gathered from the opinion which built up to the conclusion that the patent claim in suit was invalid. The argument would concededly not be available if the judgment had read: “Judgment for the defendant, with costs”, or if it had merely read: “Judgment for the defendant”, which would have automatically carried costs to the prevailing party under Rule 54(d). The common-sense interpretation of the judgment is that the defendant wins on the merits, with costs thrown in, though it could be more clearly expressed. Counsel for the plaintiff could hardly have been misled by the form of the judgment, for the district judge used substantially the same form in Bellavance v. Frank Morrow Co., Inc., 1 Cir., 1944, 141 F.2d 378, certiorari denied 1944, 322 U.S. 742, 64 S.Ct. 1144, 88 L.Ed. 1575. That was also a suit for patent infringement in which the opinion of the court [49 F.Supp. 576, 580] concluded with the sentence: “Judgment is, therefore, entered for the defendant for costs”, and on the same day the clerk made the notation in his civil docket: “Opinion filed (Copy given to Mr. Frucht and Mr. Boyajian) Judgment for Defendant for costs, entered and filed”. We entertained an appeal from that judgment, and it was not suggested to us by counsel for appellee in that case (who is now counsel for appellant in the case at bar), that the judgment was not a “final decision”.
Furthermore, even if the judgment was technically defective in form, it seems to us that the defendant, the prevailing party, is the only one who could properly object that the ambiguity in the judgment may complicate its subsequent use by the defendant as a collateral estoppel against the plaintiff on the use of validity of the patent. The judgment, however, was obviously intended by the judge as his final disposition of the case, and the plaintiff’s real grievance, which it could have urged by a timely appeal, was that the judgment did not give the plaintiff the affirmative relief it sought in the complaint.
Our conclusion is, therefore, that a final judgment was rendered in the patent suit, and that upon its entry plaintiff could have taken an appeal therefrom. Final judgment having already been entered and the time for taking the appeal having expired, the court did not err in denying plaintiff’s motion for the entry of final judgment.
In No. 4421 Original, the petition for writ of mandamus is dismissed.
In No. 4425, the order of the District Court is affirmed.
. The mere fact that under the old learning an opinion was not part of a common law record, England v. Gebhardt, 1884, 112 U.S. 502, 504, 5 S.Ct. 287, 28 L.Ed. 811, does not compel the conelusion that “a statement in an opinion of the conclusion reached by the court, even though couched in mandatory terms, cannot serve as the order or judgment of the court.” In re D’Arcy, 3 Cir., 1944, 142 F.2d 313, 315. There being no requirement of statute or rule that judgment must be pronounced in any particular form, we see no reason why the court may not, if it chooses, embody its judgment in a sentence appended at the end of an opinion. This sentence, as the judgment, would then be part of a common law record, even though the preceding opinion might not be. The old technicalities of a common law record would be inapplicable to the present case anyway, since the complaint here is in the nature of a bill in equity for an injunction and an accounting. Furthermore, law and equity are merged under the Federal Rules of Civil Procedure. Under Rule 75(g) it is prescribed that the opinion shall be certified and transmitted as part of the record on appeal.
. It can hardly be doubted today that an opinion may be examined for the purpose of determining, in a ease of doubt,' what was adjudicated by the judgment. Cf. footnote 1 supra. See Loeb v. Trustees of Columbia Township, 1900, 179 U.S. 472, 481-485, 21 S.Ct. 174, 45 L.Ed. 280; Nalle v. Oyster, 1910, 36 App.D.C. 36, 41, and on appeal 1913, 230 U.S. 165, 181, 33 S.Ct. 1043, 57 L.Ed. 1439. In Am. L. Inst. Restatement of Judgments § 68, Comment k, it is stated that for purposes of res judicata and collateral estoppel, extrinsic evidence may be resorted to for the purpose of determining what was ¿djudieated by a judgment in a previous case. Frequently an opinion will be incorporated in a judgment by specific reference—a practice which has much to commend it.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_jurisdiction
|
A
|
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.
WRIGHT et al. v. CITY OF ROANOKE REDEVELOPMENT AND HOUSING AUTHORITY
No. 85-5915.
Argued October 6, 1986
Decided January 14, 1987
White, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and Stevens, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Powell and ¿calía, JJ., joined, post, p. 432.
Henry L. Woodward argued the cause for petitioners. With him on the briefs was Renae Reed Patrick.
Bayard E. Harris argued the cause and filed a brief for respondent.
David B. Bryson and Catherine M. Bishop filed a brief for the National Housing Law Project as amicus curiae urging reversal.
Justice White
delivered the opinion of the Court.
Petitioners in this case, tenants living in low-income housing projects owned by respondent, brought suit under 42 U. S. C. §1983, alleging that respondent overbilled them for their utilities and thereby violated the rent ceiling imposed by the Brooke Amendment to the Housing Act of 1937, and the implementing regulations of the Department of Housing and Urban Development (HUD). The District Court, 605 F. Supp. 532 (WD Va. 1984), and the Court of Appeals for the Fourth Circuit, 771 F. 2d 833 (1985), concluded that petitioners did not have a cause of action under § 1983. We granted certiorari and now reverse.
I — I
Respondent is one of many public housing authorities (PHA’s) established throughout the country under the United States Housing Act of 1937, ch. 896, 60 Stat. 888, 42 U. S. C. §1401 et seq., (1970 ed.), to provide affordable housing for low-income people. In 1969, the Housing Act was amended in a fundamental respect: the Brooke Amendment, Pub. L. 91-152, §213, 83 Stat. 389, imposed a ceiling for rents charged to low-income people living in public housing projects, and, as later amended, Pub. L. 97-35, § 322, 95 Stat. 400, provides that a low-income family “shall pay as rent” a specified percentage of its income. HUD has consistently considered “rent” to include a reasonable amount for the use of utilities, which is defined by regulation as that amount equal to or less than an amount determined by the PHA to be a reasonable part of the rent paid by low-income tenants.
In their suit against respondent, petitioners alleged that respondent had overcharged them for their utilities by failing to comply with the applicable HUD regulations in establishing the amount of utility service to which petitioners were entitled. Thus, according to petitioners, respondent imposed a surcharge for “excess” utility consumption that should have been part of petitioners’ rent and deprived them of their statutory right to pay only the prescribed maximum portion of their income as rent. The District Court granted summary judgment for respondent on petitioners’ § 1983 claim, holding that a private cause of action was unavailable to enforce the Brooke Amendment. The Court of Appeals for the Fourth Circuit affirmed. Relying primarily on two of its earlier decisions, Perry v. Housing Authority of Charleston, 664 F. 2d 1210 (1981), and Phelps v. Housing Authority of Woodruff, 742 F. 2d 816 (1984), the Court of Appeals held that while the Brooke Amendment confers certain rights on tenants, these rights are enforceable only by HUD, not by the individual tenant: “[T]he situation is very analogous to the one in which a trustee [that is, HUD], not the cestui que trust, must bring suit.” 771 F. 2d, at 836.
h-I I — (
Maine v. Thiboutot, 448 U. S. 1 (1980), held that §1983 was available to enforce violations of federal statutes by agents of the State. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), and Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1 (1981), however, recognized two exceptions to the application of § 1983 to remedy statutory violations: where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immupities within the meaning of § 1983. In Pennhurst, a § 1983 action did not lie because the statutory provisions were thought to be only statements of “findings” indicating no more than a congressional preference — at most a “nudge in the preferred direc-tio[n],” 451 U. S., at 19, and not intended to rise to the level of an enforceable right. In Sea Clammers, an intent to foreclose resort to § 1983 was found in the comprehensive remedial scheme provided by Congress, a scheme that itself provided for private actions and left no room for additional private remedies under § 1983. Similarly, Smith v. Robinson, 468 U. S. 992, 1012 (1984), held that allowing a plaintiff to circumvent the Education of the Handicapped Act’s administrative remedies would be inconsistent with Congress’ carefully tailored scheme, which itself allowed private parties to seek remedies for violating federal law. Under these cases, if there is a state deprivation of a “right” secured by a federal statute, § 1983 provides a remedial cause of action unless the state actor demonstrates by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement. “We do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy” for the deprivation of a federally secured right. Ibid.
Here, the Court of Appeals held that the statute and the Brooke Amendment clearly manifested congressional intention to vest in HUD the exclusive power to enforce the benefits due housing project tenants and hence the intention to foreclose both a private cause of action under the Housing Act and any private enforcement under § 1983. For the Court of Appeals, the barrier was not the lack of statutory right or its quality or enforceability — “the plaintiffs under 42 U. S. C. § 1437a have certain rights,” 771 F. 2d, at 837 — but the fact that Congress had not intended tenants to have the authority themselves to sue: “HUD alone may, as quasi trustee, take legal action, for the right is explicitly tailored not to allow the beneficiaries, the low cost housing tenants, to do so.” Ibid.
We disagree with the Court of Appeals’ rather summary conclusion that the administrative scheme of enforcement foreclosed private enforcement. The Court of Appeals merely relied on one of its prior cases which had referred to HUD’s authority to enforce the annual contributions contracts between PHA’s and HUD, see 42 U. S. C. § 1437c, to conduct audits and to cut off funds. HUD undoubtedly has considerable authority to oversee the operation of the PHA’s. We are unconvinced, however, that respondent has overcome its burden of showing that “the remedial devices provided in [the Housing Act] are sufficiently comprehensive ... to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Sea Clammers, supra, at 20. They do not show that “Congress specifically foreclosed a remedy under § 1983.” Smith v. Robinson, supra, at 1004-1005, n. 9. Not only are the Brooke Amendment and its legislative history devoid of any express indication that exclusive enforcement authority was vested in HUD, but there have also been both congressional and agency actions indicating that enforcement authority is not centralized and that private actions were anticipated. Neither, in our view, are the remedial mechanisms provided sufficiently comprehensive and effective to raise a clear inference that Congress intended to foreclose a §1983 cause of action for the enforcement of tenants’ rights secured by federal law.
In 1981, Congress changed the maximum percentage of income' that could be paid as “rent” from 25 percent to 30 percent. Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35, § 322, 95 Stat. 400. In making this change, Congress gave the Secretary of HUD discretion to raise tenants’ rent incrementally over a 5-year period to ease the burden on low-income tenants during the transition. § 322(i), 95 Stat. 404. To avoid a potential multitude of litigation over the way in which the Secretary implemented the phased-in rate increase, Congress specifically made the Secretary’s decisions effectuating the phase-in immune from judicial review. § 322(i)(3). At congressional hearings in which this specific and limited exception to judicial review was discussed, HUD representatives explained that this exception had no effect on tenants’ ability to enforce their rights under the Housing Act in federal court other than the limited exception concerning the phase-in. Apparently dissatisfied with even a temporary preclusion of judicial review, Congress repealed it two years later. Pub. L. 98-181, § 206(e), 97 Stat. 1181.
Also at odds with the holding that HUD has exclusive authority to enforce the Brooke Amendment is the enactment in 1985 of 42 U. S. C. § 1437d(k) (1982 ed., Supp. Ill), which directed HUD to continue its longstanding regulatory requirement that each PHA provide formal grievance, procedures for the resolution of tenant disputes with the PHA arising out of their lease or PHA regulations. These procedures, which Congress ordered continued, include informal and formal hearings and administrative appeals, conducted within each PHA by impartial decisionmakers, to consider adverse decisions taken against tenants by the PHA. Congress’ aim was to provide a “decentralized, informal, and relatively non-adversarial administrative process” for resolving tenant-management disputes. Samuels v. District of Columbia, 248 U. S. App. D. C. 128, 133, 770 F. 2d 184, 189 (1985). The procedures are open to individual grievances but not to class actions. See 24 CFR § 966.51(b) (1986). HUD itself has never provided a procedure by which tenants could complain to it about the alleged failures of PHA’s to abide by their annual contribution contracts, the Brooke Amendment, or HUD regulations; nor has it taken unto itself the task of reviewing PHA grievance procedure decisions. Moreover, § 966.57(c) of HUD’s grievance procedure regulations provides that a decision terminating a grievance proceeding shall in no way affect the rights of a tenant either to seek “trial de novo or judicial review in any judicial proceedings, which may thereafter be brought in the matter. ” HUD thus had no thought that its own supervisory powers or the grievance system that it had established foreclosed resort to the courts by tenants who claimed that a PHA was not observing the commands of the Brooke Amendment.
There is other evidence clearly indicating that in HUD’s view tenants have the right to bring suit in federal court to challenge housing authorities’ calculations of utility allowances. Among HUD’s 1982 proposed regulations was § 865.476(d), 47 Fed. Reg. 35249, 35254 (1982), which would have confined tenant utility-allowance challenges to the procedures available in state court. The final regulation, however, contained no such limitation and contemplated that tenants could challenge PHA actions in federal as well as state courts. 24 CFR § 965.473(e) (1985). As the comment accompanying the final regulation explained, the proposal to limit challenges to state-court actions had been abandoned. The final “provision does not preclude Federal court review.” 49 Fed. Reg. 31403 (1984). HUD’s opinion as to available tenant remedies under the Housing Act is entitled to some deference by this Court. See Jean v. Nelson, 472 U. S. 846, 865 (1985); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984).
In both Sea Clammers and Smith v. Robinson, the statutes at issue themselves provided for private judicial remedies, thereby evidencing congressional intent to supplant the § 1983 remedy. There is nothing of that kind found in the Brooke Amendment or elsewhere in the Housing Act. Indeed, the only private remedy provided for is the local grievance procedures which the Act now requires. These procedures are not open to class grievances; and even if tenants may grieve about a PHA’s utility allowance schedule, which petitioners dispute, the existence of a state administrative remedy does not ordinarily foreclose resort to § 1983. See Patsy v. Board of Regents of Florida, 457 U. S. 496, 516 (1982).
The Court of Appeals and respondents rely on HUD’s authority to audit, enforce annual contributions contracts, and cut off federal funds. But these generalized powers are insufficient to indicate a congressional intention to foreclose § 1983 remedies. Cf. Cannon v. University of Chicago, 441 U. S. 677, 704-707 (1979); Rosado v. Wyman, 397 U. S. 397, 420 (1970). HUD has the authority to audit, but it does not do so frequently and its own Handbook requires audits only every eight years. There are no other mechanisms provided to enable HUD to effectively oversee the performance of the some 3,000 local PHA’s across the country. The statute does not require and HUD has not provided any formal procedure for tenants to bring to HUD’s attention alleged PHA failures to abide by the Brooke Amendment and HUD regulations. Hence, there will be little occasion to exercise HUD’s power to sue PHA’s to enforce the provisions of the annual contributions contracts. Respondent asserts PHA’s must annually file their utility allowance schedules with HUD and that HUD must approve them, but the final regulations eliminated HUD’s duty to approve these schedules before their effective date. 24 CFR § 965.473(d) (1986). Review of the schedules would be done in the course of audits or reviews of PHA operations.
Lastly, it is said that tenants may sue on their lease in state courts and enforce their Brooke Amendment rights in that litigation. Perhaps they could, but the state-court remedy is hardly a reason to bar an action under § 1983, which was adopted to provide a federal remedy for the enforcement of federal rights.
In sum, we conclude that nothing in the Housing Act or the Brooke Amendment evidences that Congress intended to preclude petitioners’ § 1983 claim against respondent.
HH HH I — I
Although the Court of Appeals read the Brooke Amendment as extending to housing project tenants certain rights enforceable only by HUD, respondent asserts that neither the Brooke Amendment nor the interim regulations gave the tenants any specific or definable rights to utilities, that is, no enforceable rights within the meaning of § 1983. We perceive little substance in this claim. The Brooke Amendment could not be clearer: as further amended in 1981, tenants could be charged as rent no more and no less than 30 percent of their income. This was a mandatory limitation focusing on the individual family and its income. The intent to benefit tenants is undeniable. Nor is there any question that HUD interim regulations, in effect when this suit began, expressly required that a “reasonable” amount for utilities be included in rent that a PHA was allowed to charge, an interpretation to which HUD has adhered both before and after the adoption of the Brooke Amendment. HUD’s view is entitled to deference as a valid interpretation of the statute, and Congress in the course of amending that provision has not disagreed with it.
Respondent nevertheless asserts that the provision for a “reasonable” allowance for utilities is too vague and amorphous to confer on tenants an enforceable “right” within the meaning of § 1983 and that the whole matter of utility allowances must be left to the discretion of the PHA, subject to supervision by HUD. The regulations, however, defining the statutory concept of “rent” as including utilities, have the force of law, Chrysler Corp. v. Brown, 441 U. S. 281, 294-295 (1979), they specifically set out guidelines that the PHAs were to follow in establishing utility allowances, and they require notice to tenants and an opportunity to comment on proposed allowances. In our view, the benefits Congress intended to confer on tenants are sufficiently specific and definite to qualify as enforceable rights under Pennhurst and § 1983, rights that are not, as respondent suggests, beyond the competence of the judiciary to enforce.
The judgment of the Court of Appeals is accordingly
Reversed.
“[42 U. S. C.] § 1983. Civil action for deprivation of rights:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
The Brooke Amendment in its present form reads as follows:
Ҥ 1437a. Rental payments
“(a) Families included; amount
“Dwelling units assisted under this chapter shall be rented only to families who are lower income families at the time of their initial occupancy of such units. Reviews of family income shall be made at least annually. A family shall pay as rent for a dwelling unit assisted under this chapter (other than a family assisted under section 1437f(o) of this title) the highest of the following amounts, rounded to the nearest dollar:
“(1) 30 per centum of the family’s monthly adjusted income;
“(2) 10 per centum of the family’s monthly income; or
“(3) if the family is receiving payments for welfare assistance from a public agency and a part of such payments, adjusted in accordance with the family’s actual housing costs, is specifically designated by such agency to meet the family’s housing costs, the portion of such payments which is so designated.” 42 U. S. C. § 1437a (1982 ed. and Supp. III).
The language of the original Brooke Amendment required that low-income tenant’s rent “may not exceed one-fourth of the family’s income, as defined by the Secretary.”
The complaint was filed December 8, 1982. The regulations in effect at that time defined “contract rent,” that is, the amount actually charged to low-income tenants, as follows:
“Contract rent means the rent charged a tenant for the use of the dwelling accommodation and equipment (such as ranges and refrigerators but not including furniture), services, and reasonable amounts of utilities determined in accordance with the PHA’s [public housing authority’s] schedule of allowances for utilities supplied by the project. Contract rent does not include charges for utility consumption in excess of the public housing agency’s schedule of allowances for utility consumption, or other miscellaneous charges . . . .” 24 CFR § 860.403 (1982).
The relevant regulations were originally promulgated as an interim rule on September 9,1980. 45 Fed. Reg. 59502 (1980). As there noted, HUD had previously regulated the way in which utility charges were dealt with in HUD’s Local Housing Authority Management Handbook, pt. 2, §9, Controlling Utility Consumption and Costs (1963). Ibid. On August 13, 1982, HUD published a proposed rule to amend the interim regulations, commenting as follows with respect to the inclusion of utilities in the calculation of rent:
“In administering the low-income public housing program under the United States Housing Act of 1937, as amended, HUD historically has considered ‘rent’ to include shelter cost plus a reasonable amount for utilities. As a result, even prior to adoption of the ‘Brooke Amendment’ in 1969 (limiting the amount of ‘rent’ chargeable to public housing tenants to a stated percentage of income, then 25 percent), HUD provided for a system under which allowances were established as part of the rent schedule showing the amounts of electricity in kilowatt-hours to which tenants were entitled.” 47 Fed. Reg. 35249-35250 (1982).
The regulation was finally amended on August 7, 1984. 49 Fed. Reg. 31399 (1984). The Supplementary Information section of the published regulation contains a discussion which underscores the fact that HUD has traditionally treated “rent” to include a reasonable amount of utility usage. Id., at 31400. That section also provides an overview of the development of the utility regulations at issue here.
The dissent may have a different view, but to us it is clear that the regulations gave low-income tenants an enforceable right to a reasonable utility allowance and that the regulations were fully authorized by the statute.
The applicable regulations, 24 CFR §865.470 et seq. (1983), require housing authorities like respondent to, inter alia, recalculate their utility allowances on the basis of current data, to set the allowances in such a fashion that 90 percent of a particular authority’s dwelling units do not pay surcharges, and to review tenant surcharges quarterly and consider revision of the allowances if more than 26 percent of any category of units are being surcharged.
The complaint also contained a claim against respondent for breach of paragraph 4 of the standard lease agreement providing:
“Utilities: Management Agent agrees to furnish at no charge to the Resident the following utilities as reasonably necessary: hot and cold water, gas for cooking, and electricity for lighting and general household appliances and heat at appropriate times of the year, and also range and refrigerator. Resident will be required to pay for all excess consumption of utilities above the monthly allocated amount as developed by the Authority and determined by the individual check meter servicing the leased unit. The schedule of allocations and charges for excess consumption is posted on the bulletin board of each Housing Development office.” Record, Exh. H.
The original complaint asked for both injunctive relief and recovery of whatever amount respondent allegedly overcharged petitioners. Pursuant to new HUD regulations, respondent revised its allowances for reasonable utility use. Petitioners are now seeking only recovery of alleged past improper charges. Brief for Petitioners 8.
Petitioners asserted that while their right to sue on the lease derives from state law, the lease claim is controlled by federal law and hence is within the jurisdiction of the federal courts under 28 U. S. C. § 1331.
The court acknowledged that its conclusion that the Brooke Amendment created no enforceable rights in petitioners conflicted with the See-ond Circuit’s decision in Beckham v. New York City Housing Authority, 755 F. 2d 1074 (1985). The court stated, however, that this decision “must yield to the authority of Perry and Phelps, supra, from our own circuit.” 771 F. 2d, at 837, n. 8.
In response to a question by Congressman Vento concerning the reason for the exception to judicial review, a representative of HUD explained that this limited exception had no effect on tenants’ ability to protect their rights other than limiting their right to challenge the Secretary’s actions in implementing the phase-in:
“Mr. Vento. Well, has this been a special problem? Usually we don’t exempt people from going to the district court unless there has been some problem that has developed. Has there been that type of a problem in the past?
“Mr. Hovde. I will call upon Mr. Hipps for a response.
“Mr. Hipps. In direct answer to your question, yes, we have had a lot of litigation involving tenants rights over the past several years. The provision that you have raised a question about is addressed only at the 5-year phase in of the increase, and is not intended, as I understand, to eliminate any tenants rights beyond that point.” Hearings on Housing and Community Development Amendments before the Subcommittee on Housing and Community Development of the House Committee on Banking, Finance and Urban Affairs, 97th Cong., 1st Sess., pt. 1, p. 654 (1981).
Petitioners assert that the grievance mechanism is not available for challenges to the general utility allowance schedules. They rely on HUD statements to this effect, the first in 1984 in connection with the issuance of formal regulations, 49 Fed. Reg. 31407:
“Some legal services organizations recommended that grievance procedures should apply to the utility allowance provisions. Grievance procedures under former Part 866 (now Part 966) apply to individual, not class, grievances so that challenges to the general utility allowance schedules would be precluded. The Department believes that procedures to be followed on claims for individual relief under § 965.479 should be left to PHA determination.”
The second statement by HUD was in connection with proposing new grievance hearing regulations in 1986, 51 Fed. Reg. 26528:
“(a) Purpose of informal hearing. (1) The grievance procedure shall provide the Family an opportunity for an informal hearing to review proposed PHA adverse action. The purpose of the informal hearing shall be to review whether the proposed adverse action by the PHA is in accordance with, the lease, or with the law, HUD regulations or PHA rules.
“(2) PHA action or non-action concerning general policy issues or class grievances (including determination of the PHA’s schedules of allowances for PHA-furnished utilities or of allowances for Tenant-purchased utilities) does not constitute adverse action by the PHA, and the PHA is not required to provide the opportunity for a hearing to consider such issues or grievances.”
United States Dept, of Housing and Urban Development, Field Office Monitoring of Public Housing Agencies (PHAs) 6-1 (Handbook 7460.7, Rev. Sept. 9, 1985).
HUD explained, 49 Fed. Reg. 31403 (1984), as follows:
“In a related issue, legal service organizations expressed concern about the absence of any HUD review of the PHA’s allowance determination.
“HUD’s regulatory reform goals include the removal of unnecessary reviews and approvals of actions by responsible parties having equal or greater information at hand. This is particularly appropriate in the case of public housing in view of the ’37 Act’s injunction that ‘[I]t is the policy of the United States to vest in the local public housing agencies the maximum amount of responsibility in the administration of their housing programs.’ 42 U. S. C. 1437. The Department believes that the definition of standards in § 965.476, combined with the record and notice provisions added to § 965.473, should adequately assure the reasonableness of PHA determinations so as to obviate the necessity or usefulness of HUD review and approval before implementation of PHA-determined allowances.”
We thus reject respondent’s argument that the Brooke Amendment’s rent ceiling applies only to the charge for shelter and that the HUD definition of rent as including a reasonable charge for utilities is not authorized by the statute.
The dissent misconstrues our discussion of the Omnibus Budget Reconciliation Act of 1981 and the enactment of the grievance procedures as codified at 42 U. S. C. § 1437d(k) (1982 ed., Supp. III). Our conclusion that low-income tenants have a right to a reasonable amount of utilities does not come from these two congressional Acts. Rather, these Acts and their history show that Congress did not close the courthouse door to low-income tenants by establishing an alternative enforcement mechanism.
The dissent is also quite wrong in concluding that HUD’s “regulations indicate that while it did not have the authority finally to resolve the question, HUD viewed utilities determinations as a matter for state rather than federal courts.” Post, at 440. It is true that the 1982 proposed regulations would have confined review of PHA utility allowances to state forums, but it was never indicated that the governing law was state rather than federal law; and in the final regulations, even the provision making PHA determinations final unless overturned in state courts was deleted. HUD thus abandoned any attempt to foreclose resort to federal courts and surely negated any conclusion that PHA determinations were not judicially re viewable. The Supplemental Information section to HUD’s final regulations contains the following revealing discussion, 49 Fed. Reg. 31403 (1984):
“C. Review of PHA Decisions by State Courts
“The National Housing Law Project and other legal service groups challenged, as illegal, proposed § 865.476(d) which would make PHA determinations of allowances and revisions thereof final unless found, upon review pursuant to such procedures as may be available under State or local law, to be arbitrary or capricious.
“The commenters challenged HUD’s power .(1) to prescribe a standard of review for State courts, and (2) to divest Federal court of jurisdiction over cases involving questions of compliance with Federal statutes and regulations.
“State procedures for review of actions by administrative bodies created under State law frequently have provided a forum for review of agency determinations that involve questions of Federal law. Such State law proceedings may be more accessible to public housing tenants in some localities than a Federal court. Moreover, the Department believes that State courts are fully competent to review determinations by authorities created under State law.
“Nevertheless, the Department also recognizes that some plaintiffs may prefer to challenge PHA determinations in Federal rather than State court and that the Department’s power to preclude access to Federal court is doubtful. The Department also recognizes that not all States may have adopted procedures providing for judicial review of administrative action. Accordingly, this provision (transferred to § 965.473(e)) has been revised (i) to expand the standard of review to ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ (compare Section 706 of the Administrative Procedure Act, 5 U. S. C. 706(2)), and (ii) to state that such standard of review will govern ‘except where a different standard of review is applicable in review procedures governed by applicable State law.’ This provision does not preclude Federal court review.”
Petitioners also argue that the District Court has subject-matter jurisdiction to consider their breach-of-lease claims given the federal nature of the rights contained in their leases. In light of our decision that petitioners have a § 1983 claim, the District Court can certainly exercise pendent jurisdiction over petitioners’ breach-of-lease claims. We offer no opinion as to whether the District Court has jurisdiction to consider only their breach-of-lease claims irrespective of their § 1983 claim.
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_7-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Larry GOLDEN, d/b/a Golden Mobil, Plaintiff-Appellee, Cross-Appellant, v. MOBIL OIL CORPORATION, a New York corporation, Defendant-Appellant, Cross-Appellee.
No. 88-3517.
United States Court of Appeals, Eleventh Circuit.
Sept. 5, 1989.
William D. Palmer, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, Fla., Michael C. Russ, Charles H. Kirbo, Stephanie E. Parker, King & Spald-ing, Atlanta, Ga., for defendant-appellant, cross-appellee.
W. Scott Gabrielson, Rush, Marshall, Bergstrom, Reber & Gabrielson, Orlando, Fla., for plaintiff-appellee, cross-appellant.
Before VANCE and ANDERSON, Circuit Judges, and ATKINS , District Judge.
Honorable C. Clyde Atkins, Senior U.S. District Judge for the Southern District of Florida, sitting by designation.
VANCE, Circuit Judge:
In this diversity case, the defendant appeals the district court’s denial of judgment notwithstanding the verdict for plaintiff on his breach of contract claim. On cross-appeal, the plaintiff challenges the court’s directed verdict for the defendant on the plaintiff’s fraud claim. We conclude that the court erred in both instances.
I. BACKGROUND
Plaintiff Larry Golden leased and operated a Sun Oil Company (“Sunoco”) service station located on South Orange Blossom Trail in Orlando, Florida. The station had three pumps at the full service island and two pumps at the self service island, all of which dispensed gasoline in liters. Two of the full service pumps and one of the self service pumps contained blenders, devices unique to Sunoco stations. The blenders allowed the pumps to dispense three types of unleaded gasoline from the same hose: regular unleaded, super unleaded, and a blend of regular and super unleaded. A customer could choose the desired type of unleaded gasoline by turning a switch on the pump. The configuration of the pumps at Golden’s Sunoco station was as follows:
Full Service Self Service
Pump 1 Super Unleaded Pump 2 Leaded
Pump 4 Regular Unleaded Pump 3 Super Unleaded
Pump 5 Leaded
Golden’s lease with Sunoco gave the company the right to terminate the agreement in the event the station was sold. In the spring of 1984, defendant Mobil Oil Corporation purchased Golden’s station and eighty-six other Sunoco stations in Florida. Mobil notified Golden of the purchase and gave him the option of buying the station for $200,000 or entering into a new lease as a Mobil dealer. Golden was interested in the possibility of purchasing the station, but was concerned that he would not be able to obtain financing. On July 11-12, 1984, therefore, he attended two meetings held by Mobil to promote the advantages of becoming a Mobil dealer. The first was held on July 11 in Orlando and the second on July 12 in Tampa. Golden testified that at the Orlando meeting a Mobil representative told him that it was the policy of the company to give customers a four cent per gallon discount for cash purchases. When Golden inquired as to the company’s cash discount policy for gasoline purchased in liters, the representative responded that “it’s not a problem because Mobil doesn’t have gas pumps that work in liters so you won’t have a problem with that.”
Golden also testified that between the Tampa meeting and the date he signed the lease, Mobil representatives Dennis O’Brien and J.J. Moore promised that he would receive new gallon pumps:
[O’Brien, Moore, and I] were talking about the transition period and they were kind of telling me what would occur and I asked well, you know, when are we going to get the [new Mobil sign], when are we going to get the pumps. That was important to me. And I was told that they were starting near the end of the county or end that I was up on to put on signs and nearer the ends of the county there I gathered north or northwest and working kind of toward one another and, you know, I would get the sign and then I would get the pumps, the regular type Mobil pumps.
The Tampa meeting, which Golden’s wife also attended, was entitled “Welcome Aboard.” All Sunoco dealers, their spouses, and key employees were invited. The agenda included a period for viewing exhibits, a presentation, cocktails, and dinner. Golden later testified that the Tampa meeting was a
[political rally kind of thing. At the very first going in it’s hey, how [sic] you doing? Everything is going to be great for you. [Dennis O’Brien, a Mobil representative,] was taking me and I believe part of the time my wife and introducing me to just various people were [sic] there. I guess other people at his level and other people from Mobil and say [sic] hey, have you signed yet? I said, no. Well, you should sign. And things along that line.
Golden also testified that a Mobil representative told the Sunoco dealers that if they agreed to become Mobil dealers their relationship with the company “would be just like a marriage that was just going to get stronger.”
On their way home from the Tampa meeting, Golden and his wife discussed their options and decided, based on Mobil’s presentations, that becoming a Mobil dealer would be a good career opportunity. The company thereafter provided Golden with a proposed lease agreement and Golden sent it to his attorney for review. The attorney informed Mobil that many of the provisions of the lease were unsatisfactory, including the following limitation of liability clause:
In no event shall Landlord be liable for prospective profits or special, indirect, or consequential damages.
The company replied that the proposed agreement was its standard service station lease contract and the terms were not negotiable. Golden decided to enter into the lease anyway and signed it on July 25, 1984. The lease became effective on August 1, 1984, with a term of three years.
Golden’s relationship with Mobil started to sour soon after he began operating as a Mobil dealer. Many of his requests to the company for the repair of the pumps, lighting, and pavement at his station went unheeded. The company replaced one of his liter pumps with a new gallon pump, but refused to replace others. This left Golden in the position of having to sell some gasoline in liters and some in gallons. The company also removed the blender from Pump 3 without Golden’s permission and replaced it with a regular nozzle. As a result, Golden could sell only two types of gasoline at the self service island. The configuration of the pumps after the removal of the blender was as follows:
Full Service Self Service
Pump 1 Regular Unleaded Pump 2 Leaded
Super Unleaded
Blend
Pump 4 Regular Unleaded Pump 3 Unleaded
Super Unleaded Super Unleaded
Blend Blend
Pump 5 Leaded
Mobil did not renew the lease at the end of its three-year term and Golden brought suit against the company in Florida state court. Mobil removed the case to federal court and Golden filed an amended complaint that alleged breach of contract and fraud. At the ensuing jury trial, Golden presented evidence of two types of damages, lost profits and lost rental rebates. Both were related to his inability to sell three types of gasoline at the self service island. The lost rental rebates were those that Golden would have received under a rental incentive program Mobil had offered to encourage dealers to sell more gasoline.
At the close of trial, the court granted Mobil’s motion for directed verdict on the fraud claim, but denied its motion for directed verdict on the breach of contract claim. The jury subsequently returned an $83,000 verdict for Golden on the breach of contract claim and the court denied Mobil’s motion for judgment notwithstanding the verdict. This appeal followed.
II. DISCUSSION
A. The Contract Claim
Mobil contends that the district court erred in denying judgment notwithstanding the verdict because the evidence was insufficient to support the jury’s verdict on the contract claim. In reviewing a district court’s ruling on a motion for directed verdict or judgment notwithstanding the verdict, we must consider all of the evidence in the light most favorable to the nonmoving party, with all reasonable inferences taken in favor of that party. If the facts and evidence point so strongly and overwhelmingly in favor of the moving party that no reasonable person could have reached a verdict for the nonmoving party, the motion should have been granted. On the other hand, if a reasonable and fair-minded person could have returned a verdict for the nonmoving party, the motion should have been denied. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (in banc).
Mobil argues that only evidence of consequential damages was admitted at trial and that the limitation of liability clause bars Golden from recovering consequential damages. Golden does not dispute that the lost profits and lost rental rebates he sought were consequential damages as contemplated under the limitation of liability clause, but argues that the clause itself is unenforceable on the ground of unconscion-ability. We disagree.
Under Florida law, a contractual provision is not unenforceable on the ground of unconscionability unless “no decent, fair-minded person would view the ensuing result without being possessed of a profound sense of injustice_” Steinhardt v. Rudolf, 422 So.2d 884, 890 (Fla.Dist.Ct.App.1982), review denied, 434 So.2d 889 (Fla.1983). Both procedural unconscionability and substantive unconscionability must exist before the provision is unenforceable. Fotomat Corp. of Fla. v. Chanda, 464 So.2d 626, 629-30 (Fla.Dist.Ct.App.1985); Kohl v. Bay Colony Club Condominium, Inc., 398 So.2d 865 (Fla.Dist.Ct.App.), review denied, 408 So.2d 1094 (Fla.1981); see Steinhardt, 422 So.2d at 889-90 (rejecting procedural-substantive analysis as a rule of law but noting that it is “generally helpful”). Procedural unconscionability exists when the individualized circumstances surrounding the transaction reveal that there was no “ ‘real and voluntary meeting of the minds’ ” of the contracting parties. Kohl, 398 So.2d at 868 (quoting Johnson v. Mobil Oil Corp., 415 F.Supp. 264, 268 (E.D.Mich.1976)). Substantive unconscionability exists when the terms of the contractual provision are unreasonable and unfair. Id.
We need not decide whether the transaction between Golden and Mobil was procedurally unconscionable because we hold that the limitation of liability clause was not substantively unconscionable. The Florida courts consistently have upheld the right to limit the remedies available in the event of a breach of a commercial lease agreement. E.g., Linens of Paris, Inc. v. Cymet, 510 So.2d 1021, 1022 (Fla.Dist.Ct. App.1987); Rodeway Inns of Am. v. Alpaugh, 390 So.2d 370 (Fla.Dist.Ct.App.1980) (commercial lease that provided lessee with two alternative remedies in event of breach by lessor not contrary to Florida law or public policy). The requirements of mutuality of obligation and mutuality of remedy, of course, render exculpatory language unenforceable if it would prevent all recovery of damages for the breach of a contractual undertaking in a lease. See Sniffen v. Century Nat’l Bank, 375 So.2d 892, 893-94 (Fla.Dist.Ct.App.1979) (citing Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205, 208 (Fla.Dist.Ct.App.1973), cert. denied, 289 So.2d 731 (Fla.1974)). The clause at issue, however, did not prevent Golden from recovering damages for a breach of the lease by Mobil. Golden could have recovered, but did not seek, the standard measure of damages for breach of lease: “the difference between the stipulated rent and the value of the use of the premises.” Moses v. Autuono, 56 Fla. 499, 47 So. 925, 927 (Fla.1908). Consequently, the district court erred in denying Mobil’s motion for judgment notwithstanding the verdict.
B. The Cross Appeal for Fraud
On cross-appeal, Golden contends that the district court erred in directing a verdict for Mobil on the fraud claim. The elements of fraud under Florida law are:
(1) a false statement concerning a material fact;
(2) the representor’s knowledge that the representation is false;
(3) an intention that the representation induce another to act on it; and[]
(4) consequent injury by the party acting in reliance on the representation.
Johnson v. Davis, 480 So.2d 625, 627 (Fla. 1985) (citation omitted). We conclude that the evidence was sufficient to establish these elements based on (1) Mobil’s promise to Golden that he had a “tremendous future” with the company and (2) Mobil’s promises to replace all of his liter pumps with gallon pumps.
We begin by addressing the first two elements of fraud as they relate to each of these promises. Golden testified that Mobil promised him that if he signed a lease he would have a “tremendous future with Mobil” and his relationship with the company “would be just like a marriage that was just going to get stronger.” This testimony was corroborated by Mobil’s script of the Tampa program:
[W]e decided from the very beginning to offer every Sun dealer a three year lease. As you know, under PMPA, we could have gone the one year trial franchise route; i.e., taking a year to get acquainted. Obviously, we felt there were advantages in demonstrating our good faith and genuine confidence in you by offering leases on terms consistent with long-term existing Mobil dealers. In other words, we think the marriage is a good one. It’s only going to get stronger, and it is going to be mutually beneficial.
“PMPA” refers to the Petroleum Marketing Practices Act, 15 U.S.C. §§ 2801-2841. Under the Act, a motor fuel franchise agreement is considered a trial franchise agreement if, among other things, its initial term is for one year or less. Id. § 2803(b)(1)(C). If a franchisor decides not to renew a trial franchise agreement at the end of its initial term, the franchisor need only comply with statutory notification procedures. Id. § 2803(c)(1). On the other hand, if the term of the lease agreement is three years or longer, a franchisor cannot terminate or fail to renew a franchise unless the termination or nonrenewal is based upon grounds listed in the Act and the franchisor complies with statutory notification procedures. Id. § 2802(b). One of these grounds is a determination by the franchisor, made in good faith and in the normal course of business, to sell the premises. Id. § 2802(b)(3) (D)(i)(II I).
Mobil’s offer of a three year lease instead of a trial franchise, its promise that Golden would have a “tremendous future” with the company, and its referral to the proposed relationship as a “marriage” could support a finding that Mobil induced Golden to enter into the lease by representing that the company intended to establish a long-term relationship with Golden. There also was evidence that the company misrepresented this intention — that when it induced Golden to enter into the lease, the company knew that there was a strong probability that it would terminate the lease and sell the station at the expiration of the initial term of the lease. An internal Mobil memorandum dated August 31,1983, stated that the company intended to sell any service station that sold less than 400,-000 gallons of gasoline annually unless the station had the clear potential of selling 600,000 gallons annually. A lease work sheet prepared by Mobil for Golden’s station on June 14, 1984, however, listed the maximum annual volume potential for Golden’s station as 300,000 gallons. Another Mobil memorandum stated the following:
Please place the subject location on the R.E.A.D.S. list and establish recommended selling price based on M.A.I. approval (approximately $120,000).
This location was acquired with the Suno-co takeover in August 1984. The location was identified to be divested prior to August 1984; however, the existing dealer, Larry Golden, rejected the $180,-000 [sic] offering price presented by Ed Goett during July 1984.
(emphasis added).
Evidence that Mobil spent as little as possible on repairs to the station also could support a finding that Mobil knew at the time it induced Golden to sign the lease that there was a substantial probability that it would sell Golden’s station at the end of the initial lease term. Mobil’s South Atlantic district manager, J.J. Costello, wrote the following memorandum in response to Golden’s request that the company install a new pump at his station:
JAB
Determine what we are absolutely required to do. This is READS and I want to get out ASAP. No work unless required.
JJC
James A. Blesson, the Mobil employee to whom the Costello memorandum was directed, testified that Costello’s reference to “READS” meant that the station had been designated for divestment.
There was evidence that, despite Golden’s repeated requests, Mobil refused to make needed repairs to the lighting, pavement, and pumps at his station. The company refused to repair pumps that would not reset after pumping, pumps that would dispense gasoline without registering the amount, pumps that would work only after being beaten with a hammer, and pumps that spewed gasoline without being turned on. The company ignored Golden’s repeated requests for the repair of deficient lighting and pavement at his station. Mobil’s own employee testified that when he reported Golden’s maintenance problems to company management, the company’s only response was to send Golden a letter informing him that his lease would be terminated if he did not stay open after dark. Mobil also refused to replace all of Golden’s Sunoco liter pumps with new Mobil gallon pumps, despite evidence that many customers reacted negatively to pumps that dispensed gasoline in liters.
The second element of fraud requires that the promisor had the positive intent not to perform the promise or made the promise with the present intent not to perform it. Bissett v. Ply-Gem Indus., Inc., 533 F.2d 142, 145 (5th Cir.1976) (interpreting Florida law). The present case not only concerns the misrepresentation of a person’s “future potential” with a company, but also concerns the company’s misrepresentation of its present intent concerning that future potential. The misrepresentation therefore is actionable as fraud under Florida law. In Telesphere Int’l, Inc. v. Scollin, 489 So.2d 1152 (Fla.Dist.Ct.App.1986), the court held that although a company had the absolute right to terminate an employee under the terms of an employment agreement, the company nonetheless could be liable for fraudulently inducing the employee to enter into the employment agreement if the employee could prove that the company deliberately concealed the known possibility that a discharge would in fact occur. Id. at 1155. The plaintiff in that case had quit his job to become the defendant’s “Director of International Operations” of a hotel call accounting system that the defendant was trying to develop. There was evidence that the defendant had induced the plaintiff to join the company by deliberately failing to inform him, before the employment agreement was signed, that the company was aware of the real potentiality that the hotel accounting system would fail and the plaintiff would be discharged. Id. at 1153. In holding that a directed verdict for the defendant was improper, the court compared the facts before it to those in Elizaga v. Kaiser Found. Hospitals, Inc., 259 Or. 542, 487 P.2d 870 (1971) (hospital could be liable for fraud for offering surgical preceptorship position to plaintiff even though defendant knew that position would be terminated shortly), and Wildes v. Pens Unlimited Co., 389 A.2d 837 (Me.1978) (company could be liable for fraud for persuading plaintiff to resign existing job to become full time salesman without informing plaintiff of defendant’s knowledge that corporate reorganization was likely and plaintiff’s loss of sales terri-' tory could result). The Scollin court held that both Elizaga and Wildes were in accordance with the law of Florida. Scollin, 489 So.2d at 1154.
Mobil’s second misrepresentation, its promises to replace all of Golden’s liter pumps with gallon pumps, also satisfies the first two elements of a cause of action for fraud. Golden’s testimony created a jury issue as to whether the promises to replace his pumps were made. Their materiality is clear. The promised new pumps would have enabled Golden to dispense regular unleaded gasoline at the self service island and would have eliminated the features of his old pumps to which his customers had objected. The evidence was undisputed that Mobil did not replace all of Golden’s old pumps with the new gallon pumps as promised. There also was evidence from which a jury could find that at the time Mobil made the promises it did not intend to fulfil them. D.L. Fuller, Mobil’s project leader for the conversion of Sunoco stations to Mobil stations, acknowledged that at the Tampa meeting he told potential Mobil dealers that:
[a]s for the pumps, if your station is in a high volume category, we will evaluate it as soon as possible in terms of changing over to the Mobil round pumps. In lower volume operations the pump face will be covered in white plastic and Mobil decals will be installed.
Fuller testified that Mobil had classified Golden’s station as a low volume station and that the company had two alternative plans for the old Sunoco pumps: “One was [to] replace[] some of the dispensers with Mobil dispensers and the other was the retention of the squared off Sunoco pumps.” Fuller described in detail Mobil’s planned method for modifying the old Su-noco pumps. A reasonable jury therefore could have found that Mobil never intended to replace all of Golden’s liter pumps with gallon pumps. Mobil’s decision from the outset to divest Golden’s station and its refusal to make needed repairs to the station also could support such a finding.
The sufficiency of the evidence concerning the final two elements of fraud warrants little discussion. From the context in which the claimed misrepresentations were made the intent that Golden should rely on them is implicit. The evidence also was sufficient to satisfy the last element of fraud, injury resulting from reliance on the misrepresentations. A defrauded plaintiff may recover compensatory damages under either the “out-of-pocket” rule or the “benefit of the bargain” rule. DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532, 536-37 (Fla.Dist.Ct.App.), cert. denied, 238 So.2d 105 (Fla.1970). The record supports a finding that Golden lost both profits and rental rebates because he did not receive the benefit of the bargain Mobil had promised. A reasonable jury could find that if Mobil actually had fulfilled its promise of a long-term relationship with Golden or its promises to replace all of his liter pumps with gallon pumps, the profits and rental rebates would not have been lost. Accordingly, the district court erred in directing a verdict for Mobil.
III. CONCLUSION
The judgment of the district court is reversed and the case remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_circuit
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
George SCANLON, Appellant, v. STATE OF OHIO et al.
No. 9835.
Circuit Court of Appeals, Sixth Circuit.
April 13, 1945.
Albert G. Muckerheide, of Cincinnati, Ohio (appointed by the court), for appellant.
Plugh S. Jenkins, Atty. Gen., of Ohio, for appellee.
Before HICKS, ALLEN, and MARTIN, Circuit Judges.
PER CURIAM.
The appeal of George Scanlon from the denial by the District Court of his petition for a writ of habeas corpus has been duly considered upon the full record and the briefs, and upon the oral argument of counsel appointed by this court to represent Scanlon on this appeal;
And it appearing that the matters presented have been heretofore considered and have been adjudicated adversely to the contentions of appellant in the companion case of Tompsett v. State of Ohio and Henderson, Warden, Ohio State Penitentiary, 146 F.2d 95, decided December 14, 1944, certiorari denied April 2, 1945, 65 S.Ct. 916, the judgment of the District Court is affirmed upon the authority of that case.
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_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
John G. ST. LAWRENCE, Appellant, v. Donald C. CLEMMER et al., Appellees.
No. 7730.
United States Court of Appeals Fourth Circuit.
Argued Oct. 8, 1958.
Decided Oct. 24, 1958.
Charles W. Laughlin, Richmond, Va. (Court appointed counsel) for appellant.
John G. St. Lawrence, pro se.
Henry St. J. FitzGerald, Asst. U. S. Atty., Alexandria, Va. (L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., on brief), for appellee.
Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and HARRY E. WATKINS, District Judge.
PER CURIAM.
The appellant complains of the dismissal by the United States District Court for the Eastern District of Virginia of his petition for a writ of habeas corpus directed to the warden of the federal prison of Lor ton, Virginia, where he is serving a sentence for violation of the narcotic laws, the sentence having been imposed by the District Court for the District of Columbia.
The appellant has heretofore applied to the sentencing court for relief under Section 2255 of Title 28 U.S.C.A., upon the ground that his conviction was based upon perjured testimony; that his counsel improperly represented him; and upon numerous other grounds. After a hearing lasting four days, that petition was dismissed, and the United States Court of Appeals for the District of Columbia Circuit refused to permit an. appeal in forma pauperis.
He then applied in the District Court for the Eastern District of Virginia for a writ of habeas corpus, from the denial' of which the present appeal was taken,. We allowed him to proceed in forma pauperis in this Court, and we appointed counsel for him. He, nevertheless, complains of his representation here and has sent voluminous letters and other communications repeating his grievances.
We have examined all of his contentions and find no merit in any of them. It does not appear that any grounds exist which have not been, or could not have been, asserted in the Courts of the District of Columbia on appeal or in the proceedings under Section 2255 of Title 28 U.S.C.A., in the District of Columbia, upon which an extensive hearing has already been had; and as no transcript of the testimony could aid him in presenting any matter that is open for consideration here, we think that the Court below has committed no error in refusing to order a transcript to be furnished him at the Government’s expense.
Affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
sc_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
SWANN et al. v. ADAMS, SECRETARY OF STATE OF FLORIDA, et al.
No. 973.
Decided February 25, 1966.
D. P. S. Paul, P. D. Thomson, Neal Rutledge, Richard F. Wolfson, Thomas C. Britton and Stuart Simon for appellants.
Earl Faircloth, Attorney General of Florida, and Edward D. Cowart and Sam Spector, Assistant Attorneys General, for appellees.
Per Curiam.
We previously remanded this case to the District Court for further proceedings in light of Reynolds v. Sims, 377 U. S. 533, and the other cases relating to legislative reapportionment decided with Reynolds. 378 U. S. 553. The District Court deferred action until the conclusion of the legislative session which convened on April 6, 1965, stating that it would reconsider its decision should the Florida Legislature fail to effect a valid reapportionment by July 1, 1965.
A reapportionment law was passed by the legislature on June 29, 1965. On July 6 the appellants filed a joint petition asking the District Court to declare the newly enacted plan unconstitutional and proposing an alternative plan. The District Court did not take action until October 5 when it ordered oral argument for November 2, 1965. On December 23 the District Court concluded that the newly passed reapportionment plan failed to “meet the requirements of the Equal Protection Clause of the Federal Constitution as construed and applied in Reynolds v. Sims . . . .”
Although the District Court concluded that the plan did not comport with constitutional requirements, it approved the plan (making only minor changes) on an interim basis. Its approval was limited to the period ending 60 days after the adjournment of the 1967 session of the Florida Legislature.
We have no occasion to review the District Court’s determination that the legislative reapportionment plan fails to meet constitutional standards. Indeed, Florida does not contend that the District Court erred in this regard, having conceded below that the plan was constitutionally deficient. We hold, however, that in approving the plan on an interim basis, the District Court erred. This litigation was commenced in 1962. The effect of the District Court’s decision is to delay effectuation of a valid apportionment in Florida until at least 1969. While recognizing the desirability of permitting the Florida Legislature itself to determine the course of reapportionment, we find no warrant for perpetuating what all concede to be an unconstitutional apportionment for another three years.
We reverse and remand to the District Court so that a valid reapportionment plan will be made effective for the 1966 elections.
Reversed and remanded.
Mr. Justice Harlan and Mr. Justice Stewart would affirm the judgment.
Mr. Justice Fortas took no part in the consideration or decision of this case.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_district
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Artemio UGALDE, Plaintiff-Appellant, v. W.A. McKENZIE ASPHALT CO., et al., Defendants, W.A. McKenzie Asphalt Co., Defendant-Appellee.
No. 92-1891
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
May 12, 1993.
Noemi A. Collie, Dallas, TX, for plaintiff-appellant.
Jeffrey Scott Levinger, Henry Floyd Sherrod, III, Jane Makela, Darla Rae DeS-teiguer, Carrington, Coleman, Sloman & Blumenthal, Dallas, TX, for defendant-ap-pellee.
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Artemio Ugalde filed this suit against his employer, W.A. McKenzie Asphalt Co., after being referred to as a “wetback” by his supervisor. Ugalde brought claims for constructive discharge pursuant to Title VII, 42 U.S.C. § 2000e, et seq., and for intentional infliction of emotional distress. McKenzie Asphalt moved for summary judgment and the district court granted the motion. Ugalde appeals. We hold that Ugalde has failed to present a genuine issue of material fact relating to either of his claims, and we therefore affirm the decision of the district court.
I
Ugalde was employed by McKenzie Asphalt as an operator of an asphalt paving machine. Ugalde is an Hispanic male originally from Mexico. On September 26, 1990, Ugalde was working as an asphalt paving machine operator on a road crew supervised by Bobbie Pope. Pope is alleged to have called Ugalde a “wetback” and asked him to stop operating the paving machine and help other employees shovel. When Ugalde could not find a shovel to use, Pope allegedly told two other employees to let Ugalde use their shovels because they were Americans and did not have to do that type of labor. Ugalde walked off the work site and went to the main office to speak with John McKenzie, who was in charge of employee complaints. Ugalde told McKenzie’s secretary that he was having problems with Pope and threatened to quit; Ugalde did not, however, report that Pope had used racial slurs against him on that day. Furthermore, Ugalde had never complained about Pope on any other previous occasion. Ugalde did not wait around to speak to McKenzie but instead left the office and did not return to the work' site.
Two days later, Ugalde returned to the main office to collect his paycheck. On this occasion, Ugalde spoke with McKenzie but still did not tell him about Pope’s alleged racial comments. At this time, McKenzie offered to let Ugalde return to work at a lower rate of pay, but Ugalde declined this offer; according to Ugalde, McKenzie’s offer was accompanied by the statement that he would pay Ugalde what he was paying the other Mexicans. About a week later, Jeff McKenzie went to Ugalde’s home and offered him a job at the same rate of pay that he had formerly been receiving and one in which Pope would not be his supervisor; Ugalde declined this offer.
Ugalde instead filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming racial discrimination, a claim which was later denied by the EEOC. Ugalde then filed suit on August 21, 1991, against McKenzie Asphalt for constructive discharge pursuant to Title VII, 42 U.S.C. § 2000e, et seq., and for intentional infliction of emotional distress. Ugalde alleged that McKenzie Asphalt constructively discharged him when it failed to take immediate remedial steps after Ugalde complained of racial slurs made to him. Ugalde also alleged that McKenzie Asphalt intentionally inflicted emotional distress upon him because a supervisor consistently referred to him as a “Mexican” and a “wetback.”
McKenzie Asphalt filed a motion for summary judgment, and on September 11, 1992, the district court granted its motion. Ugalde appeals.
II
Ugalde argues that summary judgment was inappropriate because there was sufficient evidence to create a genuine issue of material fact as to whether he was constructively discharged in violation of Title VII and whether McKenzie Asphalt’s conduct was extreme or outrageous as required under the common law tort of intentional infliction of emotional distress. In addition, Ugalde argues that it was error for the district court to deny his motion for leave to amend his complaint to provide for compensatory and punitive damages and a jury trial pursuant to the Civil Rights Act of 1991.
On the other hand, McKenzie Asphalt argues that Ugalde did not act reasonably when he walked off the job without giving it a chance to remedy the situation. McKenzie Asphalt also argues that its conduct was not sufficiently extreme or outrageous to support a claim of intentional infliction of emotional distress. Finally, McKenzie Asphalt argues that the district court correctly denied Ugalde’s motion to amend his complaint because the provisions of the Civil Rights Act of 1991 that Ugalde sought to apply do not apply retroactively.
III
A
Summary judgment is appropriate if the moving party establishes that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A genuine factual issue is one that “properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party.” Id., at 250, 106 S.Ct. at 2511. We review the district court’s granting of summary judgment de novo and affirm if the nonmoving party failed to present sufficient evidence to create a genuine issue. Palmer v. Fayard, 930 F.2d 437, 438 (5th Cir.1991).
B
We first review Ugalde’s constructive discharge claim pursuant to Title VII. Ugalde argues that the continuous, pervasive, and deliberate use of racial slurs and other abusive language by McKenzie Asphalt’s employee, Pope, was so deficient and unpleasant that a reasonable person in his shoes would have felt compelled to resign. Furthermore, Ugalde argues that any reasonable person would have felt compelled to resign after walking off the job site to complain of harassment and then being denied the opportunity to make the complaint to the person in charge. Ugalde argues that racial slurs alone can be the basis for a constructive discharge claim where a supervisor continuously and deliberately uses racial slurs and other abusive language. In short, Ugalde argues that he has set forth facts that would have made any reasonable person feel compelled to resign.
Ugalde further argues that the district court erred by considering his treatment by McKenzie Asphalt only on the day he walked off the job, and the district court should have instead considered McKenzie Asphalt’s treatment of him as a whole. Ugalde further argues that it was error for the district court to find that Pope, his supervisor, was not an agent of McKenzie Asphalt and McKenzie Asphalt could not be held liable for Pope’s actions.
C
McKenzie Asphalt argues that Ugalde’s allegations do not rise to the level of severe and pervasive harassment necessary to support a claim for constructive discharge. McKenzie Asphalt argues that these alleged ethnic slurs are insufficient to establish a claim of constructive discharge, particularly in a job context such as Ugalde’s where rough language may be expected and Ugalde was not singled out for abuse. It also points out that although Pope’s alleged comments supposedly were directed to other Hispanic employees in addition to Ugalde, none of these workers quit or threatened to do so. Even if the alleged ethnic slurs were severe and pervasive enough to support a constructive discharge, Ugalde’s claim would still fail, McKenzie argues, because he did not give it a chance to address the alleged harassment. A reasonable employee in Ugalde’s shoes would not have felt compelled to resign without giving his employee a chance to institute measures to stop the alleged harassment. It further notes that it offered to let Ugalde return to work at his previous rate of pay in a position that would not require him to work with Pope. Ugalde cannot rely on an alleged agency relationship between Pope and it, McKenzie Asphalt asserts, to support a claim that Pope constructively discharged him.
Regarding Ugalde’s alternative theory that he was constructively discharged when he returned to pick up his paycheck and was offered another position at a lower rate of pay, McKenzie Asphalt argues that even on this date Ugalde did not report Pope’s alleged misconduct. Furthermore, Ugalde concedes he quit two days earlier and therefore on the date he picked up his paycheck Ugalde had no job or position from which he could be constructively discharged.
D
In order to establish that he was constructively discharged, Ugalde must prove that his working conditions were so difficult or unpleasant that a reasonable person in his shoes would have felt compelled to resign. Cortes v. Maxus Exploration Co., 977 F.2d 195, 200 (5th Cir.1992) (quoting Landgraf v. USI Film Prods., 968 F.2d 427, 429 (5th Cir.1992)). The general rule is that if the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into involuntary resignation, then the employer has committed a constructive discharge and is as liable as if it had formally discharged the aggrieved employee. Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir.1990). To find that a constructive discharge has occurred, the trier of fact must be satisfied that the working conditions to which the employee was subjected were so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt, compelled to resign. Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir.1980). The burden is on the employee to prove constructive discharge. Boze v. Branstetter, 912 F.2d 801, 804-05 (5th Cir.1990).
After reviewing the record, we do not find evidence to suggest that a reasonable person in Ugalde’s position would have felt compelled to resign. Aside from Ugalde’s conclusory accusations, Ugalde’s only evidence of discriminatory conduct is that one supervisor employed by McKenzie Asphalt referred to him and other Hispanic employees as “Mexicans” and “wetbacks.” Ugalde attempted to complain about these comments on only one occasion. Even at that time, Ugalde did not mention that the supervisor had used ethnic slurs. When Ugalde was not immediately given a chance to meet with the head of the company, he walked off the job; it was at this point Ugalde’s constructive discharge claim arose. Under the circumstances presented in this case, “a reasonable employee instead of resigning would first have pursued either or both of two courses — completed the internal grievance procedure, or filed a complaint with the EEOC.” Boze, 912 F.2d at 805.
Assuming all facts in a light most favorable to Ugalde, we conclude that his working conditions were not so difficult or unpleasant that a reasonable employee in his shoes would have felt compelled to resign. For this reason, the district court did not err in granting summary judgment to McKenzie Asphalt as a matter of law on Ugalde’s Title VII claim.
IV
We now turn to Ugalde’s claim of intentional infliction of emotional distress. The district court clearly did not err in granting summary judgment on this claim to McKenzie Asphalt. To prevail on a claim of intentional infliction of emotional distress, Texas law requires a finding of four elements: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir.1989). Conduct is considered to be “outrageous” if it surpasses “all bounds of decency” such that it is “utterly intolerable in a civilized community.” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d). Liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions. See Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th Cir.1991). Even conduct which may be illegal in an employment context may not be the sort of conduct constituting extreme and outrageous conduct. Id.
The only conduct alleged to have •been outrageous and extreme is that a supervisor referred to Ugalde over a period of time as a “Mexican” and as a “wetback.” Although we condemn this conduct, we simply cannot say that it rises to the level of extreme and outrageous conduct necessary to support a claim for intentional infliction of emotional distress. Accordingly, the district court did not err in granting summary judgment as a matter of law on this issue.
V
We find that the district court was correct in its determination that Ugalde has failed to present a genuine issue of material fact regarding either of his claims. The district court therefore did not err in granting McKenzie Asphalt summary judgment and dismissing Ugalde’s claims of constructive discharge and intentional infliction of emotional distress.
AFFIRMED.
. Because we affirm the district court’s granting of summary judgment to McKenzie Asphalt, we need not reach Ugalde’s third issue, i.e., whether the district court should have allowed him to . amend his pleadings to provide for a jury trial and compensatory and punitive damages pursuant to the Revised Civil Rights Act of 1991.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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sc_issuearea
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
McNEAL v. CULVER, STATE PRISON CUSTODIAN.
No. 52.
Argued December 6, 1960.
Decided January 23, 1961.
Sam Daniels, acting under appointment by the Court, 362 U. S. 946, argued the cause and filed a brief for petitioner.
Odis M. Henderson, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief was Richard W. Ervin, Attorney General.
Mr. Justice Whittaker
delivered the opinion of the Court.
Upon an information charging “Assault to Murder in the First Degree,” petitioner was put to trial, without counsel, before a jury in a Florida court, was convicted of “Assault to Murder in the Second Degree” and sentenced to imprisonment for a term of 20 years which he is now serving. No appeal was taken, but within a year from his conviction petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Florida.
In that rather inartfully drawn petition, prepared in the penitentiary, at least the following allegations were made with reasonable clarity: When brought before the court for trial, petitioner, an indigent, ignorant and mentally ill Negro then 29 years of age, advised the court that he was without, and unable to obtain, counsel to conduct his defense and asked that counsel be appointed to represent him. The judge declined to do so, saying (1) “[S]ince this is not a capital offence you are not entitled to a court appointed attorney,” and (2) “you won’t need a Lawyer in this case.” Immediately, a jury was impaneled, the trial began, and petitioner was left to conduct his own defense. But, having “never before appeared in any court on a felony, and . . . not understand [ing] court procedure or know [ing] how to defend himself,” petitioner was unable effectively to conduct and present his defense, and, in consequence, the court’s denial of his request for counsel deprived him of due process of law guaranteed by both the Florida and the United States Constitutions.
The Florida Supreme Court issued a provisional writ of habeas corpus directing respondent to make a proper return. Respondent’s return denied that “petitioner’s constitutional rights were violated by the court’s alleged refusal to appoint counsel in his behalf,” attached a copy of (1) a partial transcript of proceedings at the trial, (2) the judgment of conviction and sentence, and (3) the commitment, and asserted that petitioner was being lawfully imprisoned under the latter document. Finding nothing “in this record of the trial to show whether or not any request was made of the trial judge to appoint counsel to aid the petitioner in his defense,” and believing “that the issues were [not] so complex, or [that] the petitioner was [not] so young, ignorant and inexperienced, as to bring into play the exception to the rule requiring appointment of counsel only in capital cases and to require further inquiry into the procedure culminating in his conviction and sentence,” the Florida Supreme Court, without any hearing upon petitioner's allegations, discharged the writ and remanded petitioner to custody. 113 So. 2d 381. We granted certiorari to determine whether the allegations in the habeas corpus petition, as supplemented by other portions of the record, are such as entitled him to a full hearing thereon, and, if so and if those allegations be found true, whether petitioner was denied due process of law guaranteed by the Fourteenth Amendment of the United States Constitution. 362 U. S. 910.
It is thoroughly settled that:
“ Where the gravity of the crime and other factors — such as the age and education of the defendant, the conduct of the court or the prosecuting officials, and the complicated nature of the offense charged and the possible defenses thereto — render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair/ the Constitution requires that the accused must have legal assistance at his trial.” Cash v. Culver, 358 U. S. 633, 637, and cases cited.
The record shows that petitioner was involved in a minor altercation with the proprietors — two men named Scurry — of what is referred to as a “jook,” called the “Blue Chip,” located in the “colored quarters” of Lake Wales, Florida, during the evening of December 10, 1957, and was ordered to leave the place, which he did. Soon afterward, petitioner, “without shirt or shoes” and armed with a shotgun, approached the “Blue Chip” and, although a number of persons, including one of the Scurrys, were standing on the sidewalk, petitioner fired the gun in their direction. Some of the pellets struck the lower legs of four persons, but Scurry was not hit. City police officers immediately arrested petitioner. They stated that, in the course of transporting him to jail, petitioner said that “he was sorry he shot these other boys, he intended to kill Scurry.” On this premise, petitioner was charged with and tried for “Assault to Murder in the First Degree.”
Although the record does not disclose the extent of petitioner’s education, there is abundant evidence that it was slight. Moreover, the record shows that he suffered head injuries in the Army in 1952, and ever since has been subject to “blackout spells” when excited. For a period of months following April 8, 1956, he underwent treatment for his mental condition in the Veterans Hospital at Bay Pines, Florida, and during four months of that period he was detained in the psychopathic ward. In October 1956, he was released, apparently to his mother as his guardian, but he continued to return to the hospital to “get pills.”
The record shows that petitioner was incapable of questioning witnesses and otherwise unable to conduct his defense. The State produced four witnesses — the complaining witness, Ellix Scurry, and three police officers. Petitioner asked two questions of the witness Scurry and obtained answers thereto. His third “question” was precluded by the judge, although not objected to by the State, because “that is testifying and it isn’t time for you to testify.” Petitioner asked no further questions of Scurry, did not cross-examine the other three witnesses, nor did he make a single objection during the trial. When the State rested, the judge said to petitioner: “All right, now, Elijah, that is the State’s case. If you want to, you can take the stand and tell your side of it. If you don’t want to, you don’t have to . . . .” Petitioner then took the stand and, after mentioning his head injury, “blackout spells” and hospital treatment for his mental illness, testified that he must have suffered a “blackout spell” preceding and during the shooting incident as “that part is a complete blank,” but that he is sure he did not “intend to kill anybody.” He then attempted to put in evidence a doctor’s statement which he said verified his claim of suffering “blackout spells.” Although the State did not object, the judge said “This statement would not be admissible. You could put the doctor on and have him testify; but we cannot admit any statement like this,” and the statement was not received in evidence. At the conclusion of petitioner’s testimony, the judge said to petitioner: “Now, Lige, if you had an attorney, he would argue the case before the jury” and advised petitioner that, if he desired, he could “plead [his] case.” Petitioner replied: “Well, sir, I don’t quite understand the meaning of that,” and he did not make any argument to the jury.
These facts tend strongly to show that petitioner’s ignorance, coupled with his mental illness and complete unfamiliarity with the law and court procedures, and the scant, if any, help he received from the court, made the trial fundamentally unfair.
In addition to this showing of petitioner’s lack of education and mental illness and his consequent inability to defend himself, the record at least implicitly discloses a number of highly complex legal questions, beyond the comprehension of almost any layman.
The Florida assault law appears to be replete with distinctions and degrees. Mayhem, bare assault, assault and battery, aggravated assault and assault with intent to commit felony are all statutory offenses. Assault with intent to commit felony — apparently the crime intended to be charged against petitioner — incorporates by reference all Florida felonies and the degrees thereof. The Florida homicide statutes appear to create four separate offenses — manslaughter, and murder in the first, second and third degrees. In considering the interplay between homicide and assault with intent to commit felony, the Florida courts have held that, although one may be guilty of assault with intent to commit manslaughter, Lassiter v. State, 98 Fla. 370, 123 So. 735, there is no such thing as assault with intent to commit murder in the second or third degree because — inasmuch as those crimes do not require a finding of “intent” — such would be “an assault with intent to commit an act without intent.” Tillman v. State, 81 Fla. 558, 564, 88 So. 377, 380.
To establish the requisite “intent” to commit any of the grades or degrees of unlawful homicide “it will not be sufficient to show that the killing, had it occurred, would have been unlawful and a felony, but it must be found that the accused committed the assault with intent to take life, for although an unintentional or involuntary killing may in some cases be unlawful and a felony, no man can intentionally do an unintentional act; and without the intent the assault can not be punished under this statute, even though the killing, had it been committed, would have amounted to a felony. . . .” Williams v. State, 41 Fla. 295, 298, 26 So. 184, 185.
If, in firing the gun, petitioner did not have this felonious “intent to kill,” his greatest possible crime would have been “Aggravated Assault” — an assault “with a deadly weapon, without intent to kill.” This is not an academic distinction, for 15 years' difference in punishment is involved. The only testimony in this record of “intent to kill” was that of the police officers who testified that while transporting him to jail on the night of the occurrence, petitioner stated that he “intended to kill Scurry.” That testimony appears to have been admitted without the slightest inquiry as to whether the statement was freely and voluntarily made by petitioner. Admission of that crucial evidence, in those circumstances, shows a patent violation of the Florida law which renders inadmissible all admissions made to law officers by an accused while under arrest unless the State affirmatively shows that they were freely and voluntarily made. Louette v. State, 152 Fla. 495, 12 So. 2d 168; Thomas v. State (Fla. 1957), 92 So. 2d 621; Williams v. State (Fla. 1954), 74 So. 2d 797. These complex and intricate legal questions were obviously “beyond the ken of a layman.” Cash v. Culver, supra, at 638.
Indeed, it is questionable whether such a crime as the one upon which petitioner was charged, tried and convicted — “Assault to Murder,” not “Assault with Intent to Commit Felony” — actually exists under the Florida law, Williams v. State, supra, and it is equally uncertain whether the verdict, convicting petitioner of “Assault to Murder in the Second Degree,” is sufficient to support the judgment in the light of 2 Fla. Stat. 1957, p. 2957, § 921.03, which contains the provision that “no judgment of guilty shall be rendered on a verdict unless the jurors clearly express in it a finding against the defendant upon the issue.” See also French v. State, 96 Fla. 657, 118 So. 815.
Moreover, the record contains facts which would have instantly suggested to counsel that petitioner might have a good insanity defense. “[W]hen there is testimony of insanity sufficient to present a reasonable doubt of sanity the presumption [of sanity] vanishes. The defendant is then entitled to an acquittal if the state does not overcome the reasonable doubt.” Farrell v. State (Fla. 1958), 101 So. 2d 130, 133. It is too much to expect this mentally ill petitioner effectively to raise and establish the defense of his own insanity, and, so far as this record shows, neither thé prosecutor nor the trial court took any notice of the matter.
The question treated in the separate concurring opinion only lurks in the record, as it was not raised, briefed or argued here, and therefore we do not reach or express any views upon it.
For the totality of the reasons reviewed, due process of law required that petitioner have the assistance of counsel at the trial of this case, if the facts and circumstances alleged in his habeas corpus petition are true. On the present record it is not possible to determine their truth. But the allegations themselves made it incumbent on the Florida court to grant petitioner a hearing and to determine what the true; facts are.
Reversed.
Such is the rule, in those circumstances, whether or not the accused requested the appointment of counsel. Uveges v. Pennsylvania, 335 U. S. 437, 441.
The following statements, made by petitioner at his trial, are clear evidence of his lack of education: “when I gets excited, I blacks out”; “I had it because I throwed it down myself”; "... without no shirt and no shoes”; “I goes and gets pills.”
On this score petitioner testified:
“When I was in the hospital, I stayed over there four months locked in the ward, psycho part of it; and the four months I was over there, I had to stay in there locked up all the time. Mama was the only one that could come and see me. And, well, about the latter part of the four months he give me a weekend pass. He was trying me to see if I would come back.
“And I went home and I come back on time. And I asked mama to come and sign for me as that was the only way I could get back. I had to have a guardian to sign. And she come over there that day and begged the doctor to let me go home.”
2 Fla. Stat. 1957, p. 2800, §§ 784.01-784.06.
2 Fla. Stat. 1957, p. 2800, §784.06, which provides:
“ASSAULT WITH INTENT TO COMMIT FELONY. — Whoever commits an assault on another, with intent to commit any felony punishable with death or imprisonment for life, shall be punished by imprisonment in the state prison not exceeding twenty years. An assault with intent to commit any other felony shall be punished to an extent not exceeding one-half the punishment which could have been inflicted had the crime been committed.”
2 Fla. Stat. 1957, p. 2798, § 782.07.
2 Fla. Stat. 1957, p. 2797, § 782.04.
2 Fla. Stat. 1957, p. 2800, § 784.04.
Five years is the maximum sentence for aggravated assault under § 784.04, whereas a 20-year sentence may be imposed for assault with intent to commit felony under § 784.06.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Appellee, v. Santos Jesus MARTINEZ-TORRES, Defendant, Appellant. UNITED STATES of America, Appellee, v. Luis Alfredo MARTINEZ-TORRES, Defendant, Appellant. UNITED STATES of America, Appellee, v. Epifanio MARTINEZ-TORRES, a/k/a “Fanny,” Defendant, Appellant.
Nos. 87-2006 to 87-2008.
United States Court of Appeals, First Circuit.
Reheard April 4, 1990.
Decided Aug. 20, 1990.
Harry Anduze Montano, Hato Rey, P.R., for defendants, appellants.
J. Douglas Wilson, Atty., Dept, of Justice, Washington, D.C., with whom Daniel Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.
Before BREYER, Chief Judge, ALDRICH, CAMPBELL, TORRUELLA, SELYA and CYR, Circuit Judges.
OPINION EN BANC
BAILEY ALDRICH, Senior Circuit Judge.
On May 26, 1987, defendants-appellants were convicted of various drug offenses. Pursuant to a Puerto Rico District Court local rule authorizing the procedure, the jury empaneling had been conducted by a magistrate. Questions not resolved by the magistrate were satisfactorily resolved by the judge in the lobby during a recess, the judge not appearing in court until the empaneling had been completed. Defendants voiced no objection. Their appeals were argued before a panel of this court on May 5, 1989. Again, no question was raised as to the empanelment — a full answer to the government’s sometime suggestion that defendants had been holding back for a second go at the cake — but on June 12, 1989, a unanimous Court decided, in Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923, that magistrate em-panelment was improper. Defendants promptly moved for a remand for vacation of their convictions. The panel affirmed the convictions, United States v. Lopez-Pena, 912 F.2d 1536 (1989), and denied the motions to remand, 912 F.2d 1542 (1989) (2-1). Three of the six defendants petitioned for en banc review of the denial of the remand, which we granted. We now reverse their convictions, and remand for a new trial.
The basis of the panel decision was that, although Gomez was retroactive as to all cases that were pending on direct review, a point the government now concedes, Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), magistrate em-panelment, though now seen to be an error, was not of such consequence as to be plain error, and therefor was not to be considered in the absence of a contemporary objection. In addition, the panel ruled that the defendants were to be faulted, and that even plain error was to be disregarded as a matter of judicial discretion, because objecting was not “futile” where there was no “solid wall” of authority establishing its uselessness, and the district court should have been afforded the opportunity to correct its error. E.g., United States v. Griffin, 818 F.2d 97 (1st Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987). The government now advances both propositions. We consider the latter first, but start with chronology.
As the Gomez Court recited in its opinion, over the years Congress has extended authorization to magistrates for the avowed purpose of relieving district judges, in whole or in part, of some of their many duties. Encouraged by the favorable reception this received from the Court, Mathews v. Weber, 423 U.S. 261, 267-68, 96 S.Ct. 549, 552-53, 46 L.Ed.2d 483 (1976), many district courts adopted local rules passing substantial duties, preliminarily, or finally, to their magistrates. In Puerto Rico it was provided that a magistrate “is authorized to [cjonduct voir dire and select petit juries for the court in civil and criminal cases.” D.P.R.R. 506.6. Similar rules were adopted in Rhode Island and New Hampshire, and, we are told, in more than half of the dis-' tricts, nationwide. Quite evidently these rules were thought authorized. Prior to defendants’ trial, in addition to our own case of United States v. Rivera-Sola, 713 F.2d 866 (1st Cir.1983), we find three reported cases of magistrate empanelment under the present statute. United States v. DeFiore, 720 F.2d 757 (2d Cir.1983), cert. denied, 466 U.S. 906, 104 S.Ct. 1684, 80 L.Ed.2d 158 (1984); United States v. Bezold, 760 F.2d 999 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986); United States v. Peacock, 761 F.2d 1313 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985). See, also, a case even prior thereto, Haith v. United States, 342 F.2d 158 (3d Cir.1965). In none did the defendant succeed. In some instances, the defendant failed outright; in others, on the ground that he had not objected below.
In Rivera-Sola we held that where defendant had failed to object below magistrate empanelment was not plain error to be considered on appeal. Fed.R.Crim.P. 52(b). At the same time, in an extended discussion, we voiced unreserved approval of the practice. Saying that it “requires comment,” we quoted Congressional history favoring delegating powers to magistrates; noted the Court’s general approval of delegation in Mathews v. Weber, 423 U.S. at 267-68, 96 S.Ct. at 552-53; and cited specific approvals of this practice by others. We concluded, “Presiding at the selection of a jury is a recognized ‘additional duty’ of a magistrate.” Our final remark was, “We end with a general observation. We think that a magistrate can effectively conduct the voir dire and preside at the selection of juries in civil and criminal eases.” Rivera-Sola, 713 F.2d at 872-74.
Though dictum, this endorsement was especially significant in that not only was it unnecessarily volunteered, but we had recently been advised not to limit ourselves to plain error rulings in cases of improper district court practices of broad consequence, but to exercise our supervisory powers, City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256, 101 S.Ct. 2748, 2754, 69 L.Ed.2d 616 (1981), and we especially noted that the Puerto Rico magistrate empaneling was “a regular practice.” In sum, this was a clear endorsement, and not a passing observation leaving defendants with a reasonable hope that they might persuade the Puerto Rico court to jettison its time-saving rule. Even had the panel been correct in defining futility as requiring a “solid wall,” we see no porosity here, not only because of the clear Rivera-Sola language, but because of the nationwide practice nowhere condemned. The panel’s ruling favors only obnoxiously belligerent counsel who, in spite of history, or ignorant thereof, object to everything as a matter of principle, or counsel who are unduly concerned with contentious clients. Cf. United States v. Scott, 425 F.2d 55, 58 (9th Cir.1970). We think defendants’ failure to object here entirely excusable.
It does not follow that defendants are in as favorable a position as if objection had been made below. Even if counsel is totally reasonable in not objecting, we do not, on appeal, consider rights not originally sought unless they are of great importance; it is not enough that the error was not harmless. However, although a test that is sometimes applied is whether, but for the error, the result would probably have been different, e.g., United States v. Williams, 809 F.2d 75, 82 (1st Cir.1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1959, 95 L.Ed.2d 531, 481 U.S. 1072, 107 S.Ct. 2469, 95 L.Ed.2d 877, 482 U.S. 906, 107 S.Ct. 2484, 96 L.Ed.2d 377 (1987), the question is not so limited. See, e.g., United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936) (“seriously affectfs] the fairness, integrity, or public reputation of judicial proceedings”); United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (“undermine[s] the fundamental fairness of the trial”); United States v. Griffin, 818 F.2d at 100 (“seriously affect the fundamental fairness and basic integrity of the proceedings”). While these quoted statements are generalities, they would seem clearly to describe the difference between a magistrate empowered by statute to preside in a misdemeanor trial with the defendant’s written consent, 18 U.S.C. § 3401(b), and a magistrate, who, with no ostensible powers, presides in a felony trial without even informed oral consent. Such a magistrate rises no higher than a man or woman taken off the street. The dissent’s subjective approach, noting that the magistrate apparently did well, seems particularly difficult to reconcile with Gomez’s forceful language.
It is true that the Gomez Court noted that the defendant had objected below— thereby obviating the Court’s need to consider arguments for penalizing him for the tardiness of his claim — but the fact that it was deciding only such a case does not detract from its language.
[V]oir dire [is] “a necessary part of trial by jury.” Jury selection is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice ... or predisposition about defendant’s culpability....
Far from an administrative impanelment process, voir dire represents jurors’ first introduction to the substantive factual and legal issues in a case. To detect prejudices, the examiner — often, in the federal system, the court — must elicit from prospective jurors candid answers about intimate details of their lives. The court further must scrutinize not only spoken words but also gestures and attitudes of all participants to ensure the jury’s impartiality. But only words can be preserved for review; no transcript can recapture the atmosphere of the voir dire, which may persist throughout the trial.
Gomez, 109 S.Ct. at 2246-47 (citations omitted; final emphasis supplied). The Court concluded with the statement that “basic is a defendant’s right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside.” Id. at 2248.
If empaneling the jury is a “critical stage of a criminal trial,” and there is no one with “jurisdiction to preside,” surely this “affect[s] the fairness, integrity [and] public reputation” of the proceedings. What would prevent a judge from absenting himself from the trial some morning to attend to other business and appointing an able clerk to preside, provided that the clerk’s evidentiary rulings were within discretionary limits?
We agree with United States v. France, ante, n. 3, applying Gomez even though the defendant had not objected below. We cannot accept the Second Circuit’s simple assertion that Gomez depended on the existence of prior objection, United States v. Mang Sun Wong, 884 F.2d 1537, 1544-46 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990); followed in United States v. Musacchia, 900 F.2d 493 (2d Cir.1990); nor the Seventh Circuit’s assertion that the error was not prejudicial, United States v. Wey, 895 F.2d 429, 431 (7th Cir.1990). A Third Circuit majority opinion contains an interesting discussion of consent; concluding that magistrate authority could be conferred by “defendant’s consent.” The court then found this in counsel's mere failure to object. Government of the Virgin Islands v. Williams, 892 F.2d 305, 310-12 (3d Cir.1989) (one judge concurring, but because not plain error). This is a radical jump. The statutory concept of requiring defendant’s written consent, even for a misdemeanor trial, necessarily negates waiver, even oral consent, by counsel for an uninformed defendant in a felony case.
In sum, quite apart from plain error in conventional terms, there has been an unexcused violation of a fundamental provision of the statute. Nor, in the light of the Gomez Court’s description of its basic importance, can we distinguish between empanelment and the taking of evidence.
Finally, we comment briefly on Judge Campbell’s dissent. At the time of the panel hearing there was no suggestion in the record, or by counsel, that what was described as a regular practice of magistrate empaneling was ever departed from, and the panel division was over whether counsel should, nevertheless, have attempted it, the majority view being that defendants should have endeavored to persuade the court to depart from its practice, the dissent saying that, for practical purposes, in light of Rivera-Sola’s endorsement, this would have been futile. Magistrate em-panelment was recognized as a regular practice in Rivera-Sola; in the argument before the panel; and in the present government brief. In oral argument government counsel stated he knew of two exceptions, thus that • “regular ■ practice” should be read as “almost invariable practice.” If the matter was not to go shortly to the Supreme Court, we might pursue the correctness, and effect, of a new record. As it is, we stay where we are.
With respect to those appellants who timely sought rehearing en banc, the verdict of the jury will be set aside, the district court judgment will be vacated, the panel opinion and the opinion of the court denying the motion to remand will be withdrawn to the extent'inconsistent with this opinion, and the case will be remanded to the district court for a new trial. In view of the Supreme Court’s grant of certiorari in United States v. France, 886 F.2d 223 (9th Cir.1989), cert. granted, — U.S. -, 11(3 S.Ct. 1921, 109 L.Ed.2d 285 (1990), however, the mandate of this court ordering the foregoing is stayed until further order.
. Defendants also sought dismissal of the indictment, a matter they still pursue, manifestly erroneously.
. Under our practice, the granting of the petition automatically vacated the judgment as to these defendants. United States v. Klubock, 832 F.2d 664 (1st Cir.1987). The other defendants, instead, sought certiorari.
. In United States v. France, 886 F.2d 223, 228 (9th Cir.1989), cert. granted, — U.S. -, 110 S.Ct. 1921, 109 L.Ed.2d 285 (1990) post, the court excused defendant for not objecting because she was faced with a "solid wall.”
. “[I]n accordance with the regular practice in the District of Puerto Rico, the district court delegated jury selection to a magistrate."
. As to the certiorari seeking defendants who failed to file a timely petition for rehearing en banc, we reserve acting on their outstanding motion for recall of mandate until after the Supreme Court decides the France case.
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_respond1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
WARD v. DEAVERS et al. YOUNG et al. v. WARD.
Nos. 11070, 11312.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 22, 1952.
Decided March 26, 1953.
Mr. Emory H. Guy, Washington, D. C., for appellant Ellen M. Ward in case No. 11070 and for appellee Ellen M. Ward in case No. 11312.
Mr. Byron N. Scott, Washington, D. C., for appellees C. J. Young and Lane Pastor in case No. 11070 and for appellants C. J. Young and Lane Pastor in case No. 11312.
Mr. Dickson R. Loos, Washington, D. C., with whom Mr. Alexander M. Heron, Washington, D. C., was on the brief, for appellee The Aetna Casualty & Surety Company in case No. 11070.
Mr. Jo V. Morgan, Jr., Washington, D. C., with whom Messrs. John J. Wilson and Harry L. Ryan, Jr., Washington, D. C., were on the brief, for appellee Maryland Casualty Company in case No. 11070.
Before EDGERTON, WILBUR K. MILLER and WASHINGTON, Circuit Judges.
WASHINGTON, Circuit Judge.
These appeals grow out of a suit brought by Mrs. Ellen Ward, to rescind certain transactions whereby she acquired a rooming-house business.
One Deavers was the principal owner of the business in question, which was conducted in leased premises. Under the lease, Deavers could be required to quit the premises within 60 days, if the owner should at any time sell the property. In April 1945, Deavers contracted to sell the business to defendant Belew. Belew took over the business and served as its manager under a “Manager’s Operating Agreement” with Deavers. He did not acquire title to the business, but by February 1946 he had a $3,400 equity in it.
In October 1945 the business was offered for sale for $11,000 through defendants-appellants Young and Pastor, partners in a business-chance brokerage firm licensed in the District of Columbia. Plaintiff Ward, who had previously bought a similar — and entirely satisfactory — business through these brokers, investigated the proposal with the-aid of one of their employees. Shortly thereafter she put up $1,000, and offered to buy the business. Belew accepted the offer as “owner.” The sale hung in suspense, for various reasons, until mid-February of 1946, when Pastor, with whom plaintiff had been dealing for the most part, renewed his efforts to complete it. On February 14, Mrs. Ward raised her deposit to $2,500 and signed a new sales contract with Belew as owner. The next day she signed a “Manager’s Operating Agreement” offered by Deavers and similar to that he had given Belew, in lieu of a bill of sale. By its terms she was to pay Deavers part of the purchase price in installments during the remaining 13months of the lease on the premises, thereby acquiring the right to purchase the assets and good will of the business at the expiration of the lease for a nominal sum. At the same time, plaintiff gave Deavers a note for $4,000, covering the installments and final payment due him, and another note for $3,400 which he immediately indorsed to Belew “without recourse,” evidently to cover Belew’s equity in the business. She also executed a note for the balance of the purchase price — $1,100—to Young and Pastor, covering their commission on the transaction. Plaintiff entered into possession immediately. Within three months the premises were sold and within seven months the new owner demanded possession. Approximately ten months after she bought the business, plaintiff surrendered the premises in which it was conducted.
After the new owner’s demand for possession, plaintiff brought this action in the United States District Court for the District of Columbia. Her complaint was entitle “Complaint for Rescission of Business Sales Contract; the Cancellation of a Certain Manager’s Operating Contract, and of Certain Promissory Notes Representing Part of Consideration of said Business Sales Contract.” The prayer for relief asked that these contracts and notes be surrendered to the court "by [for?] cancellation,” that plaintiff’s total cash investment in the business be returned, that the court “ascertain the expenses and damages suffered by plaintiff” and enter judgment therefor, and that further just and proper relief be granted. Plaintiff named as defendants, and served, Pastor and his statutory surety, Young and his statutory surety, and Belew. Other named defendants, among them Deavers, were never validly served with process, and the action proceeded without them. The court, after trial without a jury, entered a Memorandum Opinion in which it made findings of fraud, concealment and damage, and concluded “as a matter of law, that the plaintiff is entitled to rescind and she is to have judgment to that effect.” Then, seeking to restore the status quo ante, it entered money judgments against Pastor, Young and Belew, and decreed that “all notes * * * executed by plaintiff and arising out of this transaction, are herewith can-celled.” Neither contract was specifically rescinded in the judgment. Plaintiff, dissatisfied with the sums awarded and the court’s dismissal of the action “without prejudice” as to the two defendant sureties, appealed. Defendants Young and Pastor, dissatisfied with any finding for the plaintiff, filed a counter-appeal.
In their counter-appeal, the brokers contend that Deavers was an indispensable party and that by reason of his absence the trial court “was without jurisdiction to hear the case.” The issue thus presented requires resolution at the outset. It is settled that “Rescission of a contract, or declaration of its invalidity, as to some of the parties, but not as to others, is not generally permitted.” Roos v. Texas Co., 2 Cir., 1927, 23 F.2d 171, 172. In this case there were two writings' — the sales contract of February 14 signed by the parties Ward and Belew, and the Manager’s Agreement of February 15 signed by Mrs. Ward and by Deavers, who was not a party to this suit. It seems reasonably clear that the sales contract of February 14 became a nullity on February 15 by merger in the Manager’s Agreement. But even if it did not, we think it was not severable from the rest of the transaction for separate rescission, though the formal parties to it were before the court. Nor could the remainder of the transaction—the Manager’s Agreement, signed by Deavers—be rescinded in the absence of Deavers. “[T]here is a general rule that where rights sued upon arise from a contract all parties to it must be joined.” Gauss v. Kirk, 1952, 91 U.S.App.D.C. 80, 198 F.2d 83, 84. Under the agreement, Deavers was entitled, inter alia, to prompt monthly payment of $250 for 13% months, or, failing this, restoration of the premises “with all of the equipment, furnishings, stock in trade, or other chattels therein contained * * unencumbered and in good condition. He was an indispensable party because a final decree rescinding the agreement could hardly be made without “affecting” his interest, Shields v. Barrow, 1854, 17 How. 130, 136, 15 L.Ed. 158. Because the transaction could not be rescinded as to Deavers, it could not be rescinded at all. Roos v. Texas Co., supra.
Although the District Court lacked jurisdiction to rescind, it did not therefore lack jurisdiction “to hear the case,” as Young and Pastor contend. Since the complaint alleged that “the entire transaction was fraudulent,” and that others beside Deavers were implicated, the court should have considered whether relief other than rescission should not be granted, despite Deavers’ absence, against parties actually before the court. Rule 54(c) of the Federal Rules of Civil Procedure, 28 U.S. C.A., requires that the court’s final judgment “grant the relief to which the party in' whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” Such a situation may present an occasion for application of Rule 19(b) of the Federal Rules of Civil Procedure. See Gauss v. Kirk, supra, 91 U.S. App.D.C. 80, 198 F.2d at page 86. On the other hand, if the court finds that plaintiff was entitled to tort damages against persons actually served Deavers’ presence before the court is neither indispensable nor necessary.
We turn now to the merits of the case. The trial court’s ultimate finding that fraud was committed by the brokers and by Belew appears to be based on its findings (1) that “all of the defendants concealed from the plaintiff the fact that Belew was not the owner of the property in question,” and (2) that there were “outstanding two other sales agreements of the same property.” (Memorandum Opinion.)
We find no adequate support in the record for the first of these basic findings. Plaintiff knew that both Deavers and Belew were interested in the business (Complaint, par. 7; Tr. 72, 75). She knew that neither one was owner of the real estate itself (Complaint, par. 7). She dealt with both men, and clearly knew she was buying up their respective interests in the business. We find no evidence of misrepresentation as to Belew’s interest, much less any misrepresentation in that regard on which plaintiff relied and acted with consequent injury. Cf. Imperial Assurance Co. of N. Y. v. Joseph Supornick & Son, 8 Cir., 1950, 184 F.2d 930, 934.
Again, we think the “two other sales agreements of the same property” afford no basis for the relief attempted. The court no doubt refers to the 1945 agreement-between Deavers- and Belew and to a contract made in 1946 between Deavers and a Mrs. Restine. The first of these was superseded by the plaintiff’s purchase of the business. Belew joined in the transfer to her, and effectively parted with his interest. As to the contract between Deavers and Mrs. Restine entered into in January 1946: there is nothing to indicate that it was ever made the basis of any claim against Mrs. Ward or anyone else, or that any injury was caused plaintiff by it, or that any misrepresentation in connection with it was ever made to her.
If the trial court's general finding of fraud is to be sustained, it must be on other grounds, not specified iby the court. We have reviewed the entire transcript of testimony, but find nothing in it which so decisively points to fraud as to dispense with the need for specific findings. We have considered whether to reverse outright, under the doctrine that fraud must be clearly and convincingly shown. Public Motor Service v. Standard Oil Company of New Jersey, 1938, 69 App.D.C. 89, 91, 99 F.2d 124, 126. But we recognize that the evidence here on many points is conflicting, and that the trial court, which heard the witnesses, is in a much better position than we to reach a conclusion on the question of fraud. Cf. Wynne v. Boone, 1951, 88 U.S. App.D.C. 363, 191 F.2d 220. Accordingly, we think the case should be remanded. Plaintiff must, of course, show fraud committed by or imputable to the defendants who are actually before the court, in order to justify relief as against them. And she must show that the fraud caused the injury of which she complains: damages therefor must be measured by the usual tests of causality rather than by ah effort to restore the status quo ante. Cf. Draisner v. Lowenstein, 1952, 91 U.S.App.D.C. 98, 198 F.2d 295. Here, again, new findings are called for. Upon remand, the court should also reexamine its dismissal of the action, without prejudice, as to the statutory sureties of Young and Pastor. Absent good reason for declining to decide it, we think the issue of the sureties’ liability should be settled finally in the present action. No such reason appears in the record before us.
For the foregoing reasons, the judgment will be
Reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
. The $3,400 note indorsed to Belew and the $1,100 note to Young and Pastor were at first issued in the form of a $4,500 note payable directly to Belew. The latter note was destroyed when the two replacements for it were executed.
. Young’s surety as a licensed broker was Maryland Casualty Company; Pastor’s was Aetna Casualty , Surety Company. Their bonds were written pursuant to Section 45-1405 of the D.C.Code (1951).
. Later designated in its judgment to serve as its Findings of Fact and Conclusions of Law.
. That rule provides: “When persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court as to both service of process and venue and can be made parties without depriving the court of jurisdiction of the parties before it, the court shall order them summoned to appear in the action. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them as to either service of process or venue can be acquired only by their consent or voluntary appearance o.r if, though they are subject to its jurisdiction, their join-der would deprive the court of jurisdiction of the parties before it; but the judgment rendered therein does not affect the rights or liabilities of absent persons.”
. “Tort feasors are not indispensable or necessary to an action against one of their number, because ■ their liability is both joint and several.” 3 Moore’s Federal Practice, par. 19.07; Wells v. Universal Pictures Co., 2 Cir., 1948, 166 F.2d 690; Carl Gutmann & Co. v. Rohrer Knitting Mills, D.C., 1949, 86 F.Supp. 506, Id., 9 F.R.D. 67.
. See supra note 1.
. Certainly, under the circumstances, there was no fraud in Belew’s signing as “owner,” when Deavers also became obligated.
. The contract was apparently abandoned when Mrs. Restine committed suicide a few days after signing ■ it, and before Mrs. Ward’s second offer on the business.
. If, upon the remand, the court proceeds to an award of damages against any defendant properly served who remains in possession of notes arising from this transaction, cancellation thereof by physical destruction as an offset to the award may then bo within the range of proper relief. See Annotation, 109 A.L.R. 1032.
. See supra note 2.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America and Clifton Beale, Revenue Agent, Internal Revenue Service v. Emanuel LIEBMAN and Liebman & Flaster, A Professional Law Corporation, Appellants.
No. 83-5766, 83-5842.
United States Court of Appeals, Third Circuit.
Argued May 21, 1984.
Decided Sept. 13, 1984.
Herbert Odell, Robert D. Comfort (Argued), John P. Kopesky, Morgan, Lewis & Bockius, Philadelphia, Pa., for appellants.
W. Hunt Dumont, U.S. Atty., Newark, N.J., Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Charles E. Brookhart, Gayle P. Miller (Argued), Tax Div., Dept, of Justice, Washington, D.C., for appellees.
Before GARTH and SLOVITER, Circuit Judges, and NEAHER, District Judge.
Hon. Edward R. Neaher, United States District Court for the Eastern District of New York, sitting by designation.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Emanuel Liebman and the law firm of Liebman & Flaster appeal from a district court order 569 F.Supp. 761 (D.N.J.1983) directing them to comply with an Internal Revenue Service summons. The appellants claim that enforcement of the summons, which seeks the names of all clients who paid fees over a three-year period in connection with the acquisition of certain tax shelters, would violate the attorney-client privilege. We agree, and we will reverse.
I.
Facts and Procedural History
The appellants, who specialize in tax law, investigate and evaluate real estate partnerships for clients who want to invest for tax purposes. At least for the period at issue here, the firm charged fees only to those clients who invested. Liebman & Flaster concedes that each of these clients was advised that the fee was deductible as a legal expense. Brief for Appellants at 7. The IRS contends, however, that the fees are not legal fees but brokerage charges, and are therefore not deductible. When the IRS discovered that some investors had deducted fees paid to Liebman & Flaster, the agency sought to ascertain the names of others who might have done the same by various cross-matching methods. This information is not readily available to the IRS from the returns of the other investors because taxpayers who deduct legal fees are not required to identify the recipients. Frustrated in its effort to find the other taxpayers, the IRS sought a John Doe summons to compel the law firm to identify clients who had paid fees in connection with real estate partnerships.
The IRS petitioned the district court under Section 7609(f) of the Internal Revenue Code, which permits service of a John Doe summons upon a showing that it relates to an “ascertainable group or class of persons” when there is “a reasonable basis for believing” that these persons have failed to comply with a tax code provision and the information sought is “not readily available from other sources.” The summons requested “books, records, papers, billing ledgers and any other data which contains, reflects, or evidences the names, addresses and/or social security numbers of clients who paid fees in connection with the acquisition of real estate partnership interests in 1978, 1979 and/or 1980.” App. at 12a.
Liebman and his firm objected that enforcement of the summons would violate the attorney-client privilege. The district court rejected the claim and granted the enforcement order, although it permitted the attorneys to produce a list of names rather than their records. See App. at 147a.
This appeal was taken from the district court’s order.
II.
Discussion
The sole issue before us is whether the attorney-client privilege protects the identities of the Liebman & Flaster clients sought by the IRS. The question is governed by federal common law, see Fed.R. Evid. 501, which of course includes the attorney-client privilege. While the applicability of the privilege must turn on the facts of each case, determining the scope of protection in each case is a question of law. See Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).
It is well established that “absent unusual circumstances the identity of the client does not come within the attorney-client privilege.” Gannet v. First National State Bank of New Jersey, 546 F.2d 1072, 1073 n. 4 (3d Cir.1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2674, 53 L.Ed.2d 270 (1977). See 2 Weinstein’s Evidence U 503(a)(4)[02], at 503-32 & n. 2 (1982). The courts have found such “unusual circumstances” where so much of the actual attorney-client communication has already been disclosed that identifying the client amounts to full disclosure of the communication. NLRB v. Harvey, 349 F.2d 900, 905 (4th Cir.1965). See also In re Grand, Jury Proceedings — Gordon, Witness, 722 F.2d 303, 307 (6th Cir.1983); Grand Jury Empanelled February 14, 1978 (Markowitz), 603 F.2d 469, 473-74 (3d Cir.1979); United States v. Pape, 144 F.2d 778, 783 (2d Cir.), cert. denied, 323 U.S. 752, 65 S.Ct. 86, 89 L.Ed. 602 (1944).
In Markowitz, we approvingly referred to cases affirming that the attorney-client privilege applies to the identity of a client in such a situation. We stated.
In Colton v. United States, 306 F.2d 633 (2d Cir.1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963) the court found the privilege warranted where “the substance of a disclosure has already been revealed but not its source.” Id. at 637. Similarly, in United States v. Pape, 144 F.2d 778 (2d Cir.), cert. denied, 323 U.S. 752, 65 S.Ct. 86, 89 L.Ed. 602 (1944) the court observed that there may be “situations in which so much has already appeared of the actual communications between an attorney and a client, that the disclosure of the client will result in a breach of the privilege.” Id. at 783.
Markowitz, 603 F.2d at 473. We held that the privilege was inapplicable in Markowitz because there were no confidences to which Markowitz’ client would be linked were its identity known. Id.
In this case, appellants argue persuasively that protected confidences would be revealed by disclosing the clients’ identities. If the summons merely requested the names of clients who paid fees, the information would not be protected by the attorney-client privilege. However, the summons is more specific. The affidavit of the IRS agent supporting the request for the summons not only identifies the subject matter of the attorney-client communication, but also describes its substance. That is, the affidavit does more than identify the communications as relating to the deductibility of legal fees paid to Liebman & Flaster in connection with the acquisition of a real estate partnership interest, App. at 116a-121a. It goes on to reveal the content of the communication, namely that “taxpayers ... were advised by Liebman & Flaster that the fee was deductible - for income tax purposes.” App. at 117a. Thus, this case falls within the situation where “so much of the actual communication had already been established, that to disclose the client’s name would disclose the essence of a confidential communication____” See United States v. Jeffers, 532 F.2d 1101, 1115 (7th Cir.1976) (and cases cited therein).
The fact that the district court’s enforcement order limited appellants’ obligations to producing a list of names rather than their records does not alter the scope of the information sought, since the IRS has averred, and Liebman & Flaster have acknowledged, that the clients who paid fees for such advice were told they were deductible. Because the IRS request was limited to the group of persons who paid for specific investment advice, the IRS would automatically identify those who were told they could make the questionable deductions.
The IRS argues, and the district court agreed, that the identity of the client would fall within the attorney-client privilege only when disclosure of a client’s identity would implicate the client in the matter for which he or she sought advice. App. at 145a-146a. Since the court assumed that the IRS is not investigating the taxpayers for illegalities arising from their participation in the real estate partnership but rather for the legality of the deduction of the attorney’s fees and that, according to the district court, was not the matter as to which the taxpayers initially consulted Liebman & Flaster, the court found the attorney-client privilege inapplicable.
This construction of the privilege is unduly narrow. As we stressed in Markowitz, “it is the previously revealed confidence, not the fact of potential criminal prosecution, which accounts for the privilege.” Markowitz, 603 F.2d at 473 n. 4 (emphasis added). Other courts have agreed that application of the privilege to a client’s identity is not limited to discussions of criminal activity or torts. See In re Grand Jury (Osterhoudt), 722 F.2d 591, 593 (9th Cir.1983); In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 453 (6th Cir.1983); NLRB v. Harvey, 349 F.2d 900, 907 (4th Cir.1965). To limit the protection of a client’s identity as the IRS urges would vitiate the privilege. It does not advance resolution of the issue to argue, as does the IRS, that the attorney-client privilege “is an obstacle to the search for the truth.” Brief for the Appellee at 8. The salutary purpose of the privilege has recently been noted in Upjohn v. United States, 449 U.S. at 389, 101 S.Ct. at 682, where the Court stated,
Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.
All legal communications entered into with the expectation of privacy are privileged -whatever the initial purpose of the consultation.
Nor do we see any basis for holding that the communication itself is not within the scope of the privilege. At issue is not the mere disclosure of the act of retaining a lawyer, a fact not normally privileged, but the disclosure of a substantial confidential communication. See Osterhoudt, 722 F.2d at 594; Colton v. United States, 306 F.2d 633, 637 (2d Cir.1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963). Since the deductibility of a fee is a legal matter, it is a confidence ordinarily protected by attorney-client privilege. We concludé that it is so protected here.
If appellants were required to identify their clients as requested, that identity, when combined with the substance of the communication as to deductibility that is already known, would provide all there is to know about a confidential communication between the taxpayer-client and the attorney. Disclosure of the identity of the client would breach the attorney-client privilege to which that communication is entitled. For this reason the district court’s order enforcing the summons will be reversed.
. Appeal No. 83-5766 is from the district court's oral order denying a timely motion for reconsideration. Appeal No. 83-5842 is from the district court’s subsequent written order denying the same motion. We consider the appeals as consolidated.
. The Fifth Circuit, in In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir.1982) (in banc), stated that the privilege would apply when the client’s identity furnishes the "last link” in a chain of incriminating evidence that would result in the client’s indictment. This appears to go further in sustaining the privilege than we were willing to accept in Markowitz. We do not rely on this "last link” in this case because here we find that there was a protected communication, and hence our decision is entirely consistent with Markowitz.
. A legal communication is protected even if the consultation included advice that would be unprotected if rendered by a nonlawyer. See NLRB v. Harvey, 349 F.2d at 905 n. 3. Therefore, even if the IRS is correct in contending that counseling about the purchase of partnership interests was a broker's rather than an attorney's function, this fact would have no bearing on the communication at issue here.
. The IRS contends that the taxpayers waived their attorney-client privilege because they deducted the fees. Since the mere deduction of the fee did not disclose the substance of the communication, it could not constitute a waiver of the privileged substance of the advice received. See Colton v. United States, 306 F.2d at 639 (worksheets privileged to the extent they contain communications not disclosed on the tax return); United States v. Jeremiah, 76-1 U.S. T.C. (CCH) H 9441 (D.Ore.1975) (lawyer’s tax advice comes within attorney-client privilege even though taxpayer presumably acted on the advice in filing return). Moreover, it is by no means clear that all the clients whose identities would be revealed did take the deduction; those who did not can hardly be said to have "waived" the attorney-client privilege even under the government’s theory, and we cannot find waiver on a speculative basis.
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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sc_caseorigin
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160
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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.
BROWN v. ILLINOIS
No. 73-6650.
Argued March 18, 1975 —
Decided June 26, 1975
Robert P. Isaacson argued the cause for petitioner pro hac vice. With him on the brief were James J. Doherty and John T. Moran.
Jayne A. Carr, Assistant Attorney General of Illinois, argued the cause for respondent. With her on the brief were William J. Scott, Attorney General, and James B. Zagel, Assistant Attorney General.
Solicitor General Bork and Acting Assistant Attorney General Keeney filed a memorandum for the United States as amicus curiae.
Mr. Justice Blackmun
delivered the opinion of the Court.
This case lies at the crossroads of the Fourth and the Fifth Amendments. Petitioner was arrested without probable cause and without a warrant. He was given, in full, the warnings prescribed by Miranda v. Arizona, 384 U. S. 436 (1966). Thereafter, while in custody, he made two inculpatory statements. The issue is whether evidence of those statements was properly admitted, or should have been excluded, in petitioner’s subsequent trial for murder in state court. Expressed another way, the issue is whether the statements were to be excluded as the fruit of the illegal arrest, or were admissible because the giving of the Miranda warnings sufficiently attenuated the taint of the arrest. See Wong Sun v. United States, 371 U. S. 471 (1963). The Fourth Amendment, of course, has been held to be applicable to the States through the Fourteenth Amendment. Mapp v. Ohio, 367 U. S. 643 (1961).
I
As petitioner Richard Brown was climbing the last of the stairs leading to the rear entrance of his Chicago apartment in the early evening of May 13, 1968, he happened to glance at the window near the door. He saw, pointed at him through the window, a revolver held by a stranger who was inside the apartment. The man said: “Don’t move, you are under arrest.” App. 42. Another man, also with a gun, came up behind Brown and repeated the statement that he was under arrest. It was about 7:45 p. m. The two men turned out to be Detectives William Nolan and William Lenz of the Chicago police force. It is not clear from the record exactly when they advised Brown of their identity, but it is not disputed that they broke into his apartment, searched it, and then arrested Brown, all without probable cause and without any warrant, when he arrived. They later testified that they made the arrest for the purpose of questioning Brown as part of their investigation of the murder of a man named Roger Corpus.
Corpus was murdered one week earlier, on May 6, with a.38-caliber revolver in his Chicago West Side second-floor apartment. Shortly thereafter, Detective Lenz obtained petitioner’s name, among others, from Corpus’ brother. Petitioner and the others were identified as acquaintances of the victim, not as suspects.
On the day of petitioner’s arrest, Detectives Lenz and Nolan, armed with a photograph of Brown, and another officer arrived at petitioner’s apartment about 5 p. m. App. 77, 78. While the third officer covered the front entrance downstairs, the two detectives broke into Brown’s apartment and searched it. Id., at 86. Lenz then positioned himself near the rear door and watched through the adjacent window which opened onto the back porch. Nolan sat near the front door. He described the situation at the later suppression hearing:
“After we were there for a while, Detective Lenz told me that somebody was coming up the back stairs. I walked out the front door through the hall and around the corner, and I stayed there behind a door leading on to the back porch. At this time I heard Detective Lenz say, 'Don’t move, you are under arrest.’ I looked out. I saw Mr. Brown backing away from the window. I walked up behind him, I told him he is under arrest, come back inside the apartment with us.” Id., at 42.
As both officers held him at gunpoint, the three entered the apartment. Brown was ordered to stand against the wall and was searched. No weapon was found. Id., at 93. He was asked his name. When he denied being Richard Brown, Detective Lenz showed him the photograph, informed him that he was under arrest for the murder of Roger Corpus, id., at 16, handcuffed him, id., at 93, and escorted him to the squad car.
The two detectives took petitioner to the Maxwell Street police station. During the 20-minute drive Nolan again asked Brown, who then was sitting with him in the back seat of the car, whether his name was Richard Brown and whether he owned a 1966 Oldsmobile. Brown alternately evaded these questions or answered them falsely. Tr. 74. Upon arrival at the station house Brown was placed in the second-floor central interrogation room. The room was bare, except for a table and four chairs. He was left alone, apparently without handcuffs, for some minutes while the officers obtained the file on the Corpus homicide. They returned with the file, sat down at the table, one across from Brown and the other to his left, and spread the file on the table in front of him. App. 19.
The officers warned Brown of his rights under Miranda. Ibid. They then informed him that they knew of an incident that had occurred in a poolroom on May 5, when Brown, angry at having been cheated at dice, fired a shot from a revolver into the ceiling. Brown answered: “Oh, you know about that.” Id., at 20. Lenz informed him that a bullet had been obtained from the ceiling of the poolroom and had been taken to the crime laboratory to be compared with bullets taken from Corpus’ body. Ibid. Brown responded: “Oh, you know that, too.” Id., at 20-21. At this point — it was about 8:45 p. m. — Lenz asked Brown whether he wanted to talk about the Corpus homicide. Petitioner answered that he did. For the next 20 to 25 minutes Brown answered questions put to him by Nolan, as Lenz typed. Id., at 21-23.
This questioning produced a two-page statement in which Brown acknowledged that he and a man named Jimmy Claggett visited Corpus on the evening of May 5; that the three for some time sat drinking and smoking marihuana; that Claggett ordered him at gunpoint to bind Corpus’ hands and feet with cord from the headphone of a stereo set; and that Claggett, using a.38-caliber revolver sold to him by Brown, shot Corpus three times through a pillow. The statement was signed by Brown. Id., at 9, 38.
About 9:30 p. m. the two detectives and Brown left the station house to look for Claggett in an area of Chicago Brown knew him to frequent. They made a tour of that area but did not locate their quarry. They then went to police headquarters where they endeavored, without success, to obtain a photograph of Claggett. They resumed their search — it was now about 11 p. m. — and they finally observed Claggett crossing at an intersection. Lenz and Nolan arrested him. All four, the two detectives and the two arrested men, returned to the Maxwell Street station about 12:15 a. m. Id., at 39.
Brown was again placed in the interrogation room. He was given coffee and was left alone, for the most part, until 2 a. m. when Assistant State’s Attorney Crilly arrived.
Crilly, too, informed Brown of his Miranda rights. After a half hour’s conversation, a court reporter appeared. Once again the Miranda warnings were given: “I read him the card.” Id., at 30. Crilly told him that he “was sure he would be charged with murder.” Id., at 32. Brown gave a second statement, providing a factual account of the murder substantially in accord with his first statement, but containing factual inaccuracies with respect to his personal background. When the statement was completed, at about 3 a. m., Brown refused to sign it. Id., at 57. An hour later he made a phone call to his mother. At 9:30 that morning, about 14 hours after his arrest, he was taken before a magistrate.
On June 20 Brown and Claggett were jointly indicted by a Cook County grand jury for Corpus’ murder. Prior to trial, petitioner moved to suppress the two statements he had made. He alleged that his arrest and detention had been illegal and that the statements were taken from him in violation of his constitutional rights. After a hearing, the motion was denied. R. 46.
The case proceeded to trial. The State introduced evidence of both statements. Detective Nolan testified as to the contents of the first, App. 89-92, but the writing itself was not placed in evidence. The second statement was introduced and was read to the jury in full. Tr. 509-528. Brown was 23 at the time of the trial. Id., at 543.
The jury found petitioner guilty of murder. R. 80. He was sentenced to imprisonment for not less than 15 years nor more than 30 years. Id., at 83.
On appeal, the Supreme Court of Illinois affirmed the judgment of conviction. 56 Ill. 2d 312, 307 N. E. 2d 356 (1974). The court refused to accept the State’s argument that Brown’s arrest was lawful. “Upon review of the record, we conclude that the testimony fails to show that at the time of his apprehension there was probable cause for defendant’s arrest, [and] that his arrest was, therefore, unlawful.” Id., at 315, 307 N. E. 2d, at 357. But it went on to hold in two significant and unembellished sentences:
“[W]e conclude that the giving of the Miranda warnings, in the first instance by the police officer and in the second by the assistant State’s Attorney, served to break the causal connection between the illegal arrest and the giving of the statements, and that defendant’s act in making the statements was ‘sufficiently an act of free will to purge the primary taint of the unlawful invasion.’ (Wong Sun v. United States, 371 U. S. 471, at 486.) We hold, therefore, that the circuit court did not err in admitting the statements into evidence.” Id., at 317, 307 N. E. 2d, at 358.
Aside from its reliance upon the presence of the Miranda warnings, no specific aspect of the record or of the circumstances was cited by the court in support of its conclusion. The court, in other words, appears to have held that the Miranda warnings in and of themselves broke the causal chain so that any subsequent statement, even one induced by the continuing effects of unconstitutional custody, was admissible so long as, in the traditional sense, it was voluntary and not coerced in violation of the Fifth and Fourteenth Amendments.
Because of our concern about the implication of our holding in Wong Sun v. United States, 371 U. S. 471 (1963), to the facts of Brown’s case, we granted certiorari. 419 U. S. 894 (1974).
II
In Wong Sun, the Court pronounced the principles to be applied where the issue is whether statements and other evidence obtained after an illegal arrest or search should be excluded. In that case, federal agents elicited an oral statement from defendant Toy after forcing entry at 6 a. m. into his laundry, at the back of which he had his living quarters. The agents had followed Toy down the hall to the bedroom and there had placed him under arrest. The Court of Appeals found that there was no probable cause for the arrest. This Court concluded that that finding was “amply justified by the facts clearly shown on this record.” 371 U. S., at 479. Toy’s statement, which bore upon his participation in the sale of narcotics, led the agents to question another person, Johnny Yee, who actually possessed narcotics. Yee stated that heroin had been brought to him earlier by Toy and another Chinese known to him only as “Sea Dog.” Under questioning, Toy said that “Sea Dog” was Wong Sun. Toy led agents to a multifamily dwelling where, he said, Wong Sun lived. Gaining admittance to the building through a bell and buzzer, the agents climbed the stairs and entered the apartment. One went into the back room and brought Wong Sun out in handcuffs. After arraignment, Wong Sun was released on his own recognizance. Several days later, he returned voluntarily to give an unsigned confession.
This Court ruled that Toy’s declarations and the contraband taken from Yee were the fruits of the agents’ illegal action and should not have been admitted as evidence against Toy. Id., at 484-488. It held that the statement did not result from “ 'an intervening independent act of a free will,’ ” and that it was not “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Id., at 486. With respect to Wong Sun’s confession, however, the Court held that in the light of his lawful arraignment and release on his own recognizance, and of his return voluntarily several days later to make the statement, the connection between his unlawful arrest and the statement “had 'become so attenuated as to dissipate the taint.’ Nardone v. United States, 308 U. S. 338, 341.” Id., at 491. The Court said:
“We need not hold that all evidence is 'fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).” Id., at 487-A88.
The exclusionary rule thus was applied in Wong Sun primarily to protect Fourth Amendment rights. Protection of the Fifth Amendment right against self-incrimination was not the Court’s paramount concern there. To the extent that the question whether Toy’s statement was voluntary was considered, it was only to judge whether it “was sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Id., at 486 (emphasis added).
The Court in Wong Sun, as is customary, emphasized that application of the exclusionary rule on Toy’s behalf protected Fourth Amendment guarantees in two respects: “in terms of deterring lawless conduct by federal officers,” and by “closing the doors of the federal courts to any use of evidence unconstitutionally obtained.” Ibid. These considerations of deterrence and of judicial integrity, by now, have become rather commonplace in the Court’s cases. See, e. g., United States v. Peltier, ante, at 535-538; United States v. Calandra, 414 U. S. 338, 347 (1974); Terry v. Ohio, 392 U. S. 1, 12-13, 28-29 (1968). “The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U. S. 206, 217 (1960). But “[d]e-spite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.” United States v. Calandra, 414 U. S., at 348. See also Michigan v. Tucker, 417 U. S. 433, 446-447 (1974).
III
The Illinois courts refrained from resolving the question, as apt here as it was in Wong Sun, whether Brown’s statements were obtained by exploitation of the illegality of his arrest. They assumed that the Miranda warnings, by themselves, assured that the statements (verbal acts, as contrasted with physical evidence) were of sufficient free will as to purge the primary taint of the unlawful arrest. Wong Sun, of course, preceded Miranda.
This Court has described the Miranda warnings as a “prophylactic rule,” Michigan v. Payne, 412 U. S. 47, 53 (1973), and as a “procedural safeguard,” Miranda v. Arizona, 384 U. S., at 457, 478, employed to protect Fifth Amendment rights against “the compulsion inherent in custodial surroundings.” Id., at 458. The function of the warnings relates to the Fifth Amendment’s guarantee against coerced self-incrimination, and the exclusion of a statement made in the absence of the warnings, it is said, serves to deter the taking of an incriminating statement without first informing the individual of his Fifth Amendment rights.
Although, almost 90 years ago, the Court observed that the Fifth Amendment is in “intimate relation” with the Fourth, Boyd v. United States, 116 U. S. 616, 633 (1886), the Miranda warnings thus far have not been regarded as a means either of remedying or deterring violations of Fourth Amendment rights. Frequently, as here, rights under the two Amendments may appear to coalesce since “the ‘unreasonable searches and seizures’ condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment.” Ibid.; see Mapp v. Ohio, 367 U. S., at 646 n. 5. The exclusionary rule, however, when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth. It is directed at all unlawful searches and seizures, and not merely those that happen to produce incriminating material or testimony as fruits. In short, exclusion of a confession made without Miranda warnings might be regarded as necessary to effectuate the Fifth Amendment, but it would not be sufficient fully to protect the Fourth. Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation.
Thus, even if the statements in this case were found to be voluntary under the Fifth Amendment, the Fourth Amendment issue remains. In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be “sufficiently an act of free will to purge the primary taint.” 371 U. S., at 486. Wong Sun thus mandates consideration of a statement’s admissibility in light of the distinct policies and interests of the Fourth Amendment.
If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. See Davis v. Mississippi, 394 U. S. 721, 726-727 (1969). Arrests made without warrant or without probable cause, for questioning or “investigation,” would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings. Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a “cure-all,” and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to “a form of words.” See Mapp v. Ohio, 367 U. S., at 648.
It is entirely possible, of course, as the State here argues, that persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality. But the Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession. They cannot assure in every case that the Fourth Amendment violation has not been unduly exploited. See Westover v. United States, 384 U. S. 436, 496-497 (1966).
While we therefore reject the per se rule which the Illinois courts appear to have accepted, we also decline to adopt any alternative per se or “but for” rule. The petitioner himself professes not to demand so much. Tr. of Oral Arg. 12, 45, 47. The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, see Johnson v. Louisiana, 406 U. S. 356, 365 (1972), and, particularly, the purpose and flagrancy of the official misconduct are all relevant. See Wong Sun v. United States, 371 U. S., at 491. The voluntariness of the statement is a threshold requirement. Cf. 18 U. S. C. § 3501. And the burden of showing admissibility rests, of course, on the prosecution.
IV
Although the Illinois courts failed to undertake the inquiry mandated by Wong Sun to evaluate the circumstances of this case in the light of the policy served by the exclusionary rule, the trial resulted in a record of amply sufficient detail and depth from which the determination may be made. We therefore decline the suggestion of the United States, as amicus curiae, see Morales v. New York, 396 U. S. 102 (1969), to remand the case for further factual findings. We conclude that the State failed to sustain the burden of showing that the evidence in question was admissible under Wong Sun.
Brown’s first statement was separated from his illegal arrest by less than two hours, and there was no intervening event of significance whatsoever. In its essentials, his situation is remarkably like that of James Wah Toy in Wong Sun. We could hold Brown’s first statement admissible only if we overrule Wong Sun. We decline to do so. And the second statement was clearly the result and the fruit of the first.
The illegality here, moreover, had a quality of purposefulness. The impropriety of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was “for investigation” or for “questioning.” App. 35, 43, 78, 81, 83, 88, 89, 94. The arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up. The manner in which Brown’s arrest was effected gives the appearance of having been calculated to cause surprise, fright, and confusion.
We emphasize that our holding is a limited one. We decide only that the Illinois courts were in error in assuming that the Miranda warnings, by themselves, under Wong Sun always purge the taint of an illegal arrest.
The judgment of the Supreme Court of Illinois is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The brother, however, when asked at the trial whether any of the victim’s family suggested to the police that petitioner was possibly responsible for the victim's death, answered: “Nobody asked.” App. 74.
There is no assertion here that he did not understand those rights.
It was stipulated at the trial that if expert testimony were taken, it would be to the effect that the bullet eventually was ascertained to be a “wiped bullet,” that is, that its sides were “clean and therefore it was not ballistically comparable to any other bullets, specifically the bullets taken from the body of the deceased, Roger Corpus.” Tr. 543.
In response to questions from Mr. Crilly, Brown stated that he was employed at E. I. Guffman Company in Niles, 111., and that he was a punch press operator, App. 97, whereas he later conceded that he worked at Arnold Schwinn Bicycle Company and had never worked at any other place. Id., at 63. He also remarked in the Crilly statement that he had completed three years of high school, id., at 96, whereas later he conceded that he “never went to high school.” Id., at 58.
Members of the Court on occasion have indicated disenchantment with the rule. See, e. g., Coolidge v. New Hampshire, 403 U. S. 443, 490 (1971) (Harlan, J., concurring); id., at 492 (Burger, C. J., dissenting in part and concurring in part); id., at 493 (Black, J., concurring and dissenting); id., at 510 (White, J., concurring and dissenting); Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, 411 (1971) (Burger, C. J., dissenting). Its efficacy has been subject to some dispute. United States v. Calandra, 414 U
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:
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songer_casetyp1_7-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
COMMERCIAL STANDARD INS. CO. v. DAVIS et al.
No. 6907.
Circuit Court of Appeals, Fifth Circuit.
Dec. 19, 1933.
Rehearing Denied Jan. 13, 1934.
Hobart Price, of Dallas, Tex., for appellant.
Harris M. Kimbrough, of Amarillo, Tex., and Neth L. Leachman, of Dallas, Tex., for appellees.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
SIBLEY, Circuit Judge.
The questions made on this appeal can best be understood by following the development of the litigation. Early Davis was working as an oil well driller on June 14, 1930, when he was injured by an accident. He sought eompensation under the Texas Workmen’s Compensation Law (Vernon’s Ann. Civ. St. Tex. art. 8306 et seq.) before the Industrial Accident Board, naming as his employer Operators Oil Company, whose insurer was Commercial Standard Insurance Company. Pending the inquiry, he learned that the well at which he was working might have been taken over at the date of his injury by Sunray Oil Company, whose insurer was Century Indemnity Company, and he amended his claim to allege this situation and to claim against the Sunray Company and its insurer if in fact he had become its employee. The Board made an award in his favor and against the Century Indemnity Company. That Company and Davis each gave notice of dissatisfaction and each filed suit as provided by the act (Vernon’s Ann. Civ. St. Tex. art. 8307, § 5) to set the award aside, Davis filing his suit against both insurers in the state court and Century Indemnity Company filing in the federal court against Davis and Commercial Standard Insurance Company. Federal jurisdiction was based on diversity of citizenship, Century Indemnity Company being a corporation of Connecticut and Davis being a citizen and Commercial Standard Insurance Company a corporation of Texas. Thereupon Century Indemnity Company claiming that a separable controversy existed between Davis and itself alone in the state court suit, removed it to the federal court. All parties then joined in a motion to consolidate the two cases into one, which was done. Eight months later Commercial Standard Insurance Company moved to dismiss the consolidated ease for want of federal jurisdiction, but no order appears on the motion. A trial resulted in a verdict in favor of Davis for a total temporary disability lasting 250 weeks against Commercial Standard Insurance Company, and in favor of Century Indemnity Company. Commercial Standard Insurance Company appealing assigns three errors: That the court is without federal jurisdiction to enter a judgment between Davis and itself, being citizens of the same state; that a form of verdict covering total temporary disability followed by partial disability was not submitted to the jury in the charge; and that all costs were taxed against it.
The judgment is rendered in a consolidation of two suits, in each of which the same parties and the same general controversy appear. If the court had jurisdiction over either of the original suits it could try the controversy. As to the removed suit, the contention to uphold jurisdiction is that there was a separable controversy between Davis and Century Indemnity Company touching its liability to which Commercial Standard Insurance Company was no necessary or proper party. As to the original federal suit, the contention is that an award was to be set aside to which both Davis and Commercial Standard Insurance Company were parties and both were indispensable defendants, and that the court having jurisdiction of the entire controversy could not only render judgment as between. Davis and Century Indemnity Company but also as between him and Commercial Standard Insurance Company. The petition in the State Court is brought against “Commercial Standard Insurance Company and/or Century Indemnity Company,” and abounds in allegations containing that linguistic abomination “and/or” which certainly has no place in the art of pleading. It may he that a separable controversy may be spelled out of it. Removal because of such controversy would under 28 USCA § 71 remove the whole suit and all controversies included in it, Gainesville v. Brown-Crummer Co., 277 U. S. 55, 48 S. Ct. 454, 72 L. Ed. 781, including controversies between citizens of the same state. Barnett v. Mayes (C. C. A.) 43 F.(2d) 521, 522. In the only ease we know of where the constitutionality of such a result has been considered, constitutionality was upheld. Hoffman v. Lynch (D. C.) 23 F.(2d) 518. But we prefer to say that the proceedings against the award are special ones under the Texas Compensation Law designed to review and settle the whole liability for the accident promptly and effectually, and in them all parties interested ought to be joined; that Century Indemnity Company had a right to seek federal jurisdiction in its suit to set aside the award and that in it the federal court had authority to adjudicate the whole case as one controversy, treating jurisdiction over questions arising between citizens of the same state as dependent on the jurisdiction over the controversy between the parties of diverse citizenship.
It may be that under the law and the evidence the jury might have found total disability for a limited period as they did, and then have found additional partial disability thereafter, and that the judge should so have instructed them. But the failure is not to be complained of by the appellant insurer, because such an instruction would if acted on have added to the verdict against it. We cannot suppose that the jury included any period of partial disability in the 250 weeks which they fixed, for the verdict is express that for that time the disability will be total. Only Davis could complain that they were not told that they might consider whether after total there might ensue partial disability.
The ease is one at law. The appellant lost it — not only the consolidated case, but each of the suits composing it. There is no reason why all costs should not go against it.
Judgment affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_respond1_5_2
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F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
Louis FLANAGAN, Petitioner-Appellant, v. C. Murray HENDERSON, Respondent-Appellee.
No. 73-2451.
United States Court of Appeals, Fifth Circuit.
July 12, 1974.
James E. Franklin, Jr., Shreveport, La., for petitioner-appellant.
William J. Guste, Atty. Gen., Baton Rouge, La., Thomas A. Self, Dist. Atty., Parish of DeSoto, Many, La., LeRoy A. Hartley, Sp. Counsel, and Asst. Atty. Gen. of La., New Orleans, La., for respondent-appellee.
Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.
CLARK, Circuit Judge:
Louis Flanagan was convicted by a jury in the 11th Judicial District Court of the State of Louisiana of aggravated rape and was sentenced to life imprisonment. His right of direct appeal to the Supreme Court of Louisiana was substantially harmed, if not effectively thwarted, by the failure of one of his two retained counsel to perfect an appeal on the basis of the numerous Bills of Exception taken during the trial court proceedings. The effect of this failure was to limit the appeal record to the minute entries made by the trial court clerk. The Supreme Court of Louisiana affirmed his conviction with one justice dissenting. When Flanagan initially sought federal habeas corpus relief, he was required to exhaust his state habeas corpus remedy. He did so and then reasserted the present action in the court below, which denied him relief. On the present appeal Flanagan asserts: (1) denials of due process, in the prosecution’s refusal to produce several items of exculpatory evidence and the trial judge’s refusal to sequester the prosecuting witness; (2) deprivation of effective counsel because of the failure of his retained attorneys timely to perfect a meaningful appeal from his conviction; and (3) procedural error by the federal habeas court in denying him an evidentiary hearing. Agreeing with the last contention, we vacate the order denying the writ and remand.
Both the state and federal habeas proceedings were based upon the record generated by the State trial court. This consists of three volumes which contain pleadings, minute entries by the State district court clerk, various orders entered by the State trial judge and a series of abbreviated excerpts from the court reporter’s notes which relate to the 108 Bills of Exception assigned during pre and post trial proceedings and during the trial itself.
The particular evidentiary deprivations that Flanagan asserts as violative of due process are as follows: the refusal to allow pretrial study by an expert employed by defendant of a latent fingerprint taken from the prosecutrix’s automobile (in which the rape took place); the assertion of a State law privilege to thwart the disclosure of an investigative report prepared by the corporation that employed both the prosecutrix and Louis Brooks, the person she originally accused of this crime; the refusal, under a similar claim of privilege, to produce an affidavit given by the prosecutrix charging Brooks with the rape, despite testimony by the prosecutrix that she had not made such an implicating statement or affidavit; and finally, the unavailability of a sample of sperm taken by the parish coroner from the body of the prosecutrix on the night of the crime.
In denying relief without a hearing, the court below found the record disclosed that one of the attorneys who had represented Flanagan during his trial had previously represented Louis Brooks when he was suspected of the crime; and that the prosecutrix had been subject to full cross-examination as to the facts and circumstances surrounding her initial misidentification and all factors related to her present identification of Flanagan. Additionally it found that the prosecution’s refusals to furnish the items of information sought prior to trial were not prejudicial, did not amount to a deprivation of constitutional right and, if error, were harmless. The court further found the record before it disclosed that the prosecutor did not withhold any evidence favorable to petitioner prior to or during the trial and that the petitioner knew all of the information he sought to acquire.
If, as alleged by Flanagan, the prosecution deliberately kept from his attorneys evidence in its possession which was favorable to his acquittal, a denial of due process has resulted. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); Guerrero v. Beto, 384 F.2d 886 (5th Cir. 1967); Annotation: Withholding or Suppression of Evidence By Prosecution, 34.A.L.R.3d 16. Since the record before us does not contain the affidavit of the prosecutrix, the challenged fingerprint, the report of the employer or more than brief excerpts from the testimony of the prosecutrix, the coroner or any other witness who appeared at the trial, there is no factual basis upon which to judge whether the allegations are well taken or not.
In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1973), the Court stated:
Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.
See also 28 U.S.C. § 2254(d).
It well may be that the entire record transcript of the State trial is still available and that it alone will afford a fact finding procedure which is adequate to afford a full and fair hearing. However, no such transcript is now a part of the record in this cause and no fair appraisal of the reliability of the resolutions of those fact issues which have been developed by the petition can be made from the bits and pieces of the trial transcript which formed the record examined by the court below. Such a record is inadequate. Flores v. Estelle, 492 F.2d 711 (5th Cir. 1974). The court did not have before it the testimony of those who could accurately describe the facts. Cf. Swanson v. Estelle, 492 F.2d 115 (5th Cir. 1974).
Notwithstanding his undoubted good faith, the prosecutor’s unsupported assertion that the items sought were not exculpatory is no answer. Nor is it sufficient for counsel to describe the proof as totally overwhelming where the whole record is not presented. Similarly, the assertion by the prosecutor that the item sought is privileged under State law cannot end the inquiry into a defendant’s constitutional right to its production or disclosure. If the supplementary record developed after remand does not conclusively establish its character or the lack of defendant’s need for it in his defense, such physical evidence —which the petitioner has never seen-— must be subjected to an in camera examination by the court. Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968), cert. denied, 393 U.S. 1105, 89 S.Ct. 908, 21 L.Ed.2d 799 (1969).
On remand, the district court must require the production of a record which will furnish a reliable basis for resolving the disputed issues of fact. The extent to which further evidentiary proceedings in that court will be required depends upon the availability of the trial transcript and the use of other fact development procedures, the precise course of which is left to the district court.
Since the cause must go back for additional fact development, we consider it appropriate to comment on an issue which is bound to recur. While the result of the default of Flanagan’s counsel in perfecting a meaningful appeal has become final under. Louisiana law — an appeal on a record limited to clerical notations^ — -it is not final as a matter of Sixth Amendment right.
If an appointed counsel should altogether fail to take an appeal which a defendant requests, precedent in this circuit establishes that such neglect amounts to ineffectiveness per se. See Bailey v. Ault, 490 F.2d 71 (5th Cir. 1974); and the cases discussed in Lumpkin v. Smith, 439 F.2d 1084 (5th Cir. 1971). Appointed counsel error which leaves a defendant with only an abbreviated right of review has also been held to deny a constitutional right. Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967). Although the standard by which minimal competence of retained counsel is to be judged is similar, any errors of Flanagan’s privately employed counsel cannot be automatically charged to the state. However, since the default of one of his attorneys in properly perfecting a full appeal was promptly made known to the trial judge in the form of a request for extension of time to perfect a regular appeal, state involvement unquestionably is present here. When a court discovers that an attorney has been derelict in the performance of a court duty which could forfeit a legal right accorded to a defendant in a criminal case is significant as the right to an appeal on the merits, disciplinary measures against the attorney — rather than deprivation of the defendant’s rights — may be the only constitutional remedy. At least that is true in this case. Therefore, the district court must include in the record developed sufficient information to demonstrate whether the defendant personally waived his right to appeal upon a record comprised of his Bills of Exception. The right to this form of appeal, which had been fully perfected throughout the trial proceedings (and which the State, through court and prosecutor, knew had been so perfected) is one which his retained attorneys cannot waive for him. Collier v. Estelle, 488 F.2d 929 (5th Cir. 1973).
The trial judge’s discretionary action in permitting the prosecutrix to remain in the courtroom during the trial does not appear to present an issue of constitutional dimensions.
The cause is remanded to the district court for further proceedings not inconsistent with this opinion.
Remanded.
. State v. Flanagan, 254 La. 100, 222 So.2d 872 (1969).
. In addition to these Bills of Exception, counsel for petitioner filed more than ,30 motions for various forms of pre and post trial relief. These motions and all orders thereon also form a part of this record.
. La.Rev.Stat. § 44:3 (1940).
. During the prosecution’s case the coroner testified that in the course of his examination of the prosecutrix on the night of the rape a sample of male sperm had been taken from her vagina. On cross-examination the coroner stated he did not know whether such a sample could reveal the blood type of the rapist but promised to consult others and testify later. He subsequently informed the court that such typing was medically possible but that he could not locate the sample.
. Brooks, who was arrested shortly after the rape was reported, remained in Parish prison for over one month before petitioner was accused.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
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songer_casetyp1_7-3-5
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J
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the 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 - misc economic regulation and benefits".
LURIA BROTHERS AND COMPANY, Inc., et al., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent.
Nos. 14402, 14411-14421, 14470-14472.
United States Court of Appeals Third Circuit.
Argued Jan. 21, 1966.
Decided Jan. 8, 1968.
Rehearing Denied Feb. 27, 1968.
Morris Wolf, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa. (Nathan Silberstein, Burton Caine, Philadelphia, Pa., on the brief), for Luria Brothers and Co., Inc., petitioner in No. 14402.
Albert R. Connelly, Cravath, Swaine & Moore, New York City (Edward C. Perkins, Daniel I. Davidson, New York City, on the brief), for Bethlehem Steel Corp. et al., petitioners in No. 14414.
Howard M. Holtzmann, Holtzmann, Wise & Shepard, New York City (Mark J. Maged, New York City, on the brief), for Colorado Fuel & Iron Corp. et al., petitioners in No. 14421.
James A. Bell, Thorp, Reed & Armstrong, Pittsburgh, Pa. (C. M. Thorp, Jr., Charles Weiss, Pittsburgh, Pa., Lewis Franklin Powell, Jr., Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on the brief), for National Steel Corp., petitioner in No. 14415, Edge-water Steel Co., petitioner in No. 14416 and for Weirton Sell Co., petitioner in No. 14472.
William H. Buchanan, General Atty., United States Steel Corporation Pittsburgh, Pa. (L. L. Lewis, Merrill Russell, Pittsburgh, Pa., on the brief), for U. S. Steel Corp., petitioner in No. 14417.
Joseph A. Vieson, W. Robert Chandler, Cross, Wrock, Miller, Yieson & Kelley, Detroit, Mich., for petitioner Detroit Steel Corp.
R. H. McRoberts, Edwin S. Taylor, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for petitioner Granite City Steel Co.
Robert C. McAdoo, Morgan, Lewis & Bockius, Philadelphia, Pa., for petitioner Baldwin-Lima-Hamilton Corp.
Gilbert W. Oswald, Samuel D. Slade, Sehnader, Harrison, Segal & Lewis, Philadelphia, Pa., for petitioner Lukens Steel Co.
Arnold F. Shaw, Donohue, Kaufmann & Shaw, Washington, D. C., for petitioner Phoenix Steel Corp., successor by merger to Phoenix Iron and Steel Co. and Central Iron and Steel Co.
Lester S. Clemons, William K. McKib-bage, Quarles, Herriott & Clemons, Milwaukee, Wis., for petitioner Bucyrus-Erie Co.
Ralph M. Barley, Barley, Snyder, Cooper & Mueller, Lancaster, Pa., for petitioner Grinnell Corp., successor by merger to Columbia Malleable Castings Corp.
Dickinson, Wright, McKean & Cudlip, William B. Cudlip, T. Donald Wade, W. Gerald Warren, Detroit, Mich., for petitioner McLouth Steel Corp.
Frederick H. Mayer, Federal Trade Commission, Washington, D. C. (James Mcl. Henderson, General Counsel, J. B. Truly, Asst. General Counsel, David B. Morris, Attorney, Attorneys for Federal Trade Commission, Washington, D. C., on the brief), for respondent in all cases.
OPINION OF THE COURT
Before McLAUGHLIN, KALODNER and GANEY, Circuit Judges.
GERALD McLAUGHLIN, Circuit Judge.
Our decision in this appeal has been delayed because of litigation pending in the United States Supreme Court concerning the power of the Federal Trade Commission (Commission) to pass upon the merits of controversies before it during the period when the Commission was composed of only three of its five members and one of those three dissented. The Supreme Court has validated the hearing and decisional status of the Commission as constituted when it heard and decided that case. Federal Trade Commission v. Flotill Products, Inc., 389 U.S. 179, 88 S.Ct. 401, 19 L.Ed.2d 398 (December 4, 1967). We have therefore considered and determined the matter before us on its merits.
The Federal Trade Commission issued its original complaint in this proceeding on January 19, 1954. This was amended and supplemented by a subsequent complaint issued on July 13, 1954. Hearings were commenced on January 12, 1955, and continued periodically until May 14, 1958. During the course of the hearings which took 113 days, the testimony of more than 250 witnesses was taken. Counsel for the Commission filed proposed findings of fact and conclusions of law on November 10, 1958. The various respondents (petitioners herein) filed their separate counter-findings of fact, conclusions of law and orders from January 5, 1959 to January 13, 1959. The hearing examiner’s initial decision was filed on March 29, 1961. Oral argument before the Commission was heard on November 21, 1961, and the Commis-. sion’s opinion, which basically adopted the hearing examiner’s initial decision, was announced on November 15, 1962. On April 11, 1963, Luria Brothers and Company, Inc. petitioned this Court, pursuant to Section 5(c) of the Federal Trade Commission Act, 38 Stat. 719 (1914), as amended 15 U.S.C. § 45(c) (1958), and to Section 11 of the Clayton Act, 38 Stat. 734 (1914), as amended 15 U.S.C. § 21(e), to review and set aside the order of the Commission dated February 13, 1963.
I. The Complaint
The complaint, as finally amended and supplemented, was in two counts. Count I in substance charged that Luria and the other petitioning mills entered into a series of agreements whereby Luria was to act as the exclusive or substantially exclusive broker for the petitioning mills. It charged that these agreements led to a restraint of trade and tended to create a monopoly in the scrap metal market in violation of Section 5 of the Federal Trade Commission Act, 15 U.S. C. § 45(a) (1). Count I also charged that the petitioning mills conspired to effect a monopoly in Luria, that Luria and others restrained trade in export scrap, that petitioners engaged in coercive tactics, and that Luria acquired various competing companies — all in violation of Section 5.
Count II specifically charged Luria with violation of Section 7 of the Clayton Act, 15 U.S.C. § 18 by the acquisition of the stock of Southwest Steel Company, a competing broker, and the stock of six other companies.
Several charges were dismissed by the hearing examiner and the Commission. Those sustained were a finding that petitioners violated Section 5 of the Federal Trade Commission Act by separate agreements whereby each mill made Luria its exclusive or substantially exclusive broker; that Luria’s participation in the sale of scrap to the purchasing agent, Office Commun des Consommateurs de Ferradle (OCCF), for the Coal and Iron Community of Western Europe was illegal ; and that Luria’s ownership of the stock of Southwest violated Section 7 of the Clayton Act.
The Commission’s order prohibited Luria from contracting or agreeing to act as the exclusive or substantially exclusive broker for any plant of any respondent mill or any other buyer of scrap iron and steel; forbad the respondent mills without limit as to time to buy all or substantially all their scrap from or through Luria, and forbad them for five years to buy more than 50 percent of their scrap from Luria except to the extent that scrap, adequate in quantity and quality, is not available from other suppliers on terms which are substantially similar and competitive; forbad Luria, directly or indirectly, to agree to act as the exclusive or substantially exclusive broker in the export of scrap; forbad Luria for five years from acquiring the business of any scrap broker or dealer without the permission of the Commission and ordered Luria to divest itself of its interest in Southwest.
It is from these findings and the foregoing order that petitioners seek review by this Court.
II. Industrial Facts
At least 98 percent of the iron and steel scrap consumed in the United States is purchased by the producers of iron and steel. Scrap and pig iron are the principal metallics used in making iron and steel. Part of the scrap used in the production process is generated as a waste product of the mills’ own activities and is referred to as “home scrap.” This constitutes about one-half of the scrap consumed by producers. The remainder must be purchased from outside sources and is referred to as “purchased scrap.” Sources of purchased scrap include railroads, industrial materials, ships, automobiles, discarded household appliances, etc.
Much scrap is collected by a vast army of junk dealers and peddlers who make regular rounds for this purpose. These junkmen usually sell their scrap to larger dealers who in turn sell directly to the consumer or to brokers. Approximately 90 percent of all scrap used is purchased either from dealers or brokers. Scrap brokers, as that term is used in the industry, has reference to persons who purchase and sell scrap for their own account, taking title to it and assuming all the risks incident to ownership. In effect they are wholesale dealers, but do not take physical possession of the material. Scrap dealers, on the other hand, operate yards where they take possession of the scrap, sort and process it. There is no hard and fast line differentiating brokers from dealers since in many instances, a dealer may act as a broker and some brokers also own yards where they operate as dealers.
Brokers derive their profit from the difference between what they pay for the scrap and what, they can get for it. In general, they aim at a differential of $1.00 a gross ton, but because of market fluctuations and varying competitive conditions, the brokerage business is highly speculative.
III. History op Luria
The Luria business began about 1889 when the grandfather and greatgrand-father of the present generation of Luri-as began to collect scrap. A small office was opened in Reading, Pennsylvania, and the business was incorporated in 1918. By 1930, Luria had opened offices in New York, Pittsburgh, Boston and Philadelphia and set up two yards in Pennsylvania. By 1946, Luria had become a substantial supplier to eleven of the petitioning mills. At the same time Luria expanded westward opening offices in Detroit, Chicago, Cleveland, Houston and St. Louis. Later Luria opened offices in Colorado, Alabama, Utah, California and Oregon. Domestically Luria is the largest scrap broker with 16 offices and 6 yards located in representative cities throughout the country. When the Korean War ended in 1953, Luria entered the export market by supplying Hugo Neu, a broker specializing in the export of scrap. In 1954, Luria and two other brokers joined forces and entered into export agreements with OCCF.
IV. The Relevant Domestic Markets
The statistical information gathered by the Commission covers the scrap purchases of practically all the steel mills in the United States since approximately 99 percent of the country’s steel mills reported their purchases to the Commission. These mills referred to as “reporting mills” account for between two-thirds and three-fourths of all the scrap consumed in the United States. As previously indicated, 90 percent of the scrap purchased by the reporting mills is obtained from broker-dealer sources. In tabulating its data the Commission properly excluded purchases from sources other than broker-dealers since the sales by industrial fabricators, railroads and shipyards do not effectively compete in the market in which Luria and other broker-dealers operate.
In evaluating the effect of Luria’s operations on the scrap market the Commission divided the country into five geographic areas, one subdivision and the nation as a whole. (1) The North Atlantic area consists of the six New England states, New York, New Jersey, Eastern Pennsylvania, Delaware, Maryland and the District of Columbia. This area contains 24 reporting mills which operate 38 plants. During the pertinent period of the investigation, the years 1947-1954, the petitioning mills accounted for 80 percent of all scrap purchased by the reporting mills from broker-dealer sources. The purchases by the reporting mills in this district accounted for approximately 20 percent of all purchases by domestic mills from broker-dealer sources. (2) The Eastern Pennsylvania district is a subdivision of the North Atlantic area in which are located 13 of the above 24 mills. The petitioning mills accounted for 84 percent of the purchases made by these 13 reporting mills. Together these 13 mills account for approximately one-half of all purchases made by all the reporting mills in the North Atlantic area. (3) The Pittsburgh-Youngstown area is a hexagonal territory extending from Johnstown on the east, through Monessen and Washington, Pennsylvania, northwest through Steubenville, Ohio, Weirton, West Virginia, Youngstown and Warren, Ohio, east through Sharon, Pennsylvania, and back to Johnstown via Butler, Pennsylvania. Twenty-three mills operating 29 plants are located within this area. In 1954, the petitioning mills accounted for 18 percent of the total purchases in that area by all reporting mills. (4) The St. Louis area includes metropolitan St. Louis and its suburban areas in Missouri and Illinois. Granite City, the only petitioner in this area, and Laclede Steel Company, a reporting mill, operate the only two mills in the area. The purchases of the two mills and three large foundries in the area represent 80 percent of all purchases in the region. Granite City alone accounts for one-half of the scrap purchased by these five companies. (5) The Rocky Mountain area includes the states of Arizona, Utah, Colorado, Wyoming, Idaho and Montana. Petitioners, C.F.&I. at Pueblo, Colorado, and U. S. Steel at Geneva, Utah, operate the only two mills in the area. (6) The Pacific Coast area contains 9 reporting mills with a total of 12 plants in this area which is comprised of the states of California, Oregon and Washington. The purchases of Bethlehem-Pacific, the sole petitioning mill in the area, total almost one-half of all the purchases of the 9 reporting mills. (7) In the United States as a whole, the petitioning mills accounted for 30 percent in 1953, and 24 percent in 1954 of total scrap purchases by all reporting mills from broker-dealer sources.
The following table clearly depicts the extent to which the practices of the petitioning mills affect the scrap markets in the various areas.
Percentage Shares of the Petitioning Mills’ Purchases from Broker-Dealer Sources in Total Purchases from Such Sources By All Reporting Mills in the Respective Areas
1947 1948 1949 1950 1951 1952 1953 1954
North Atlantic 80 79 75 74 77 78 79 80
Eastern Pennsylvania 82 81 81 79 80 79 79 84
Pittsburgh-Youngstown - - - 13 15 16 16 18
St. Louis - - - 45 44 39 50 44
Rocky Mountain 100 100 100 100 100 100 100 100
Pacific Coast 40 37 38 41 43 45 52 49
United States 27 25 27 24 28 38 30 24
Luria’s percentage share in the total scrap purchases by all reporting mills from broker-dealer sources in each relevant area between 1947 and 1954 is indicated by the following tabulation,
1947 1948 1949 1950 1951 1952 1953 1954
North Atlantic 34.1 38.1 46.8 54.6 62.0 68.8 73.1 74.5
Eastern Pennsylvania 48.5 51.8 58.3 72.4 72.2 74.1 78.9 83.3
Pittsburgh-Y oungstown 20.4 20.6 26.2 37.2 32.2 35.4 36.5 36.0
St. Louis 16.5 31.0 51.7 42.5 51.6 45.4
Rocky Mountain 99.3 94.0 98.6 95.2 87.2 90.6 95.5 98.9
Pacific Coast 6.6 11.7 21.2 33.3 45.8 50.6
United States 17.1 18.8 22.3 29.4 31.4 33.3 36.5 33.7
Even when the Commission confined its evaluation of Luria’s domination in the scrap industry to a comparison of the purchases made by the petitioning mills from Luria with those made by all reporting mills from all brokers and dealers, Luria’s overshadowing position was brought into focus as indicated by the following table.
Percentage Shares of the Petitioning Mills’ Purchases from Luria and Subsidiaries in Total Purchases from Broker-Dealers By All Reporting Mills
1947 1948 1949 1950 1951 1952 1953 1954
North Atlantic 29 33 40 47 56 62 68 70
Eastern Pennsylvania 41 43 50 61 61 63 73 75
Pittsburgh-Y oungstown 10 7 15 9 11 12 12 12
St. Louis 0.1 29 44 39 50 44
Rocky Mountain 100 94 99 96 87 91 96 99
Pacific Coast 2 8 16 25 39 39
United States 10 10 14 16 21 22 25 21
Luria’s position of dominance in its relations with the petitioning mills in 1953 and 1954 is indicated by the percentage of scrap requirements filled by Luria for each mill.
Percent of Total Bought from Luria
1953 1954
89.8 87.7 Lukens
96.7 94.1 B. L.H.
100.0 100.0 Columbia
98.4 95.3 C. F.&I.
100.0 100.0 Edgewater
100.0 99.4 Phoenix
100.0 100.0 Granite City
91.1 100.0 Detroit
70.2 69.8 National
89.5 93.9 U.S.S.
McLouth 71.9 74.2
Bethlehem 81.2 80.9
Bethlehem-Pacific 75.4 80.4
Bucyrus-Erie 89.1 84.2
V. The Foreign Market
In 1954, Luria directed its efforts toward securing a hold in the export market. In 1953, the European Common Market countries had formed a central buying office to purchase scrap required by foreign steel mills. This office, OCCF, contacted Luria, Schiavone-Bo-nomo, and Western Steel International Corporation for the purpose of obtaining a scrap broker in the United States. The three concerns negotiated a contract with OCCF on July 14, 1954 providing that the three would provide all scrap to be purchased by OCCF until December 31, 1954. By subsequent arrangement, the contract was extended until December 31, 1955. Between 1954 and 1956, the six Common Market countries purchased between 66 and 84 percent of the total scrap exported from the United States to Europe. In 1954, the Luria group supplied 90 percent and in 1955, 95 percent of total scrap purchased by OCCF from the United States.
The agreement with OCCF had a substantial effect on Luria’s domestic competitors since in 1954, Luria foreclosed 80 percent of the domestic scrap market in the North Atlantic area. With only 20 percent of the domestic market available, Luria’s competitors were forced to dispose of their scrap abroad. Since the six Common Market countries purchased between 66 and 84 percent of the total scrap exported to Europe in the period between 1954 and 1956, Luria’s competitors were effectively barred from both the domestic and foreign scrap markets.
VI. The Southwest Acquisition
Southwest was a scrap broker with its scrap sales concentrated in the Pittsburgh-Youngstown area. Prior to its acquisition by Luria’s purchase of all its issued and outstanding stock on February 1, 1951, Southwest was the second largest scrap broker in the area preceded only by Luria. Of the nine other principal brokers in the area, Southwest’s sales exceeded its closest competitor by two to one. Before the acquisition, Luria and Southwest combined supplied almost one-half of the total scrap purchased by the reporting mills from brokers and dealers in the area. Moreover, both companies supplied the same consumers. The record justifies the Commission’s finding that Luria and Southwest were substantial competitors in the Pittsburgh-Youngstown area.
VII. Luria’s Exclusive or Substantially Exclusive Operations with the Various Petitioners
The Commission’s finding that Luria’s practices violated Section 5 of the Federal Trade Commission Act is based on evidence that during the years 1947 through 1954, the percentage of business conducted with Luria greatly increased and Luria employed tactics in conjunction with the various petitioners designed to eliminate competing brokers. A review of the record manifestly supports the Commission’s conclusions.
Bethlehem is the largest scrap purchaser in the Eastern part of the United States where it operates four scrap consuming plants. Prior to 1950, Bethlehem’s scrap purchases from Luria for its four plants in the North Atlantic area were relatively small. After 1950, this situation strikingly changed. Between 1947 and 1949, Luria’s share rose from 15 to 32 percent while between 1950 and 1954, it increased from 40 to 83 percent. Since Bethlehem’s purchases from broker-dealer sources represented close to 50 percent of the total broker-dealer purchases in the North Atlantic area, in 1954 Luria’s competitors were foreclosed from 40 percent of the market.
Concomitant with Luria’s percentage increase, Bethlehem began to discriminate against Luria’s competitors, many of whom had been former suppliers of Bethlehem. One of these competitors was Schiavone-Bonomo Corporation, which in 1947 was Bethlehem’s second largest supplier. During the succeeding years Schiavone-Bonomo’s sales significantly decreased until in 1954, it was no longer among Bethlehem’s five largest suppliers. Bethlehem also placed restrictions on Schiavone-Bonomo by requiring it to secure scrap only from certain designated areas and by paying it less than it gave to Luria. These same practices were employed against other former suppliers to Bethlehem such as Commercial Steel and Chemical Corporation, Harcon Corporation and Louis Cohen & Sons. These and other broker-dealer concerns found that their sales to Bethlehem decreased as Luria’s increased, and they were informed by Bethlehem that it would only purchase the scrap these companies were selling if they sold through Luria. Not only did Bethlehem cease making purchases from former broker-dealers, but it channelled shipments from direct suppliers such as industrial fabricators and railroads through Luria. The record clearly supports the hearing examiner’s conclusion that “As a result of these changes, somewhere between 1950 and 1953 Luria became Bethlehem’s substantially exclusive broker.”
The relationship between Luria and Bethlehem is symptomatic of the condition that existed throughout the North Atlantic area. The same policy of increasing sales and decreasing competition existed in Luria’s relations with C.F.&I.’s four plants in the area, with Phoenix, Lukens, B-L-H and Grinnell. It is clear that Luria had established itself as the exclusive or substantially exclusive broker for the six petitioning mills in the area whose combined purchases of scrap accounted for approximately 80 percent of the total scrap purchased by all the reporting mills.
The Rocky Mountain area contains two reporting mills, one owned by C.F.&I. located at Pueblo, Colorado, and the other owned by U. S. Steel located at Geneva, Utah. C.F.&I.’s mill is the largest scrap consuming plant in the area. C.F.&I. admits that it entered into an understanding with Luria on June 1, 1946 to the effect that the latter would serve as its exclusive broker. On the same day a formal notice to that effect was issued to the trade. The understanding was. formalized by a written contract executed on August 23, 1946, to run for a term of five years. Although the formal agreement was terminated on October 9, 1946, the oral agreement continued in full force. This is indicated by the fact that except for 1951 when due to Government allocations Luria supplied 95 percent, in the years 1947 through 1954, Luria supplied 100 percent of the scrap purchased by C.F.&I. for its Pueblo plant.
In October, 1948, the Geneva plant of U. S. Steel accepted Luria’s offer to act as its exclusive broker. Notice of this was sent to the trade, and although U. S. Steel contends that the agreement terminated in 1952, this contention is not supported by the statistical evidence nor by any announcement of the alleged termination by U. S. Steel. Following the agreement, Luria supplied 95 percent of the scrap purchased from broker-dealer sources by Geneva in 1949, 90 percent in 1953 and 94 percent in 1954. Certainly if the agreement was terminated as U. S. Steel argues, its termination did not alter petitioner’s relations with Luria.
Bethlehem-Pacific, the only petitioner in the Pacific Coast area, operates three plants which account for approximately 50 percent of the scrap purchased by the reporting mills. Bethlehem-Pacific’s practices in the area closely followed those of Bethlehem’s in the North Atlantic area. For example, until 1950, its Los Angeles plant purchased scrap from numerous brokers. In October of that year, Bethlehem-Pacific entered a ten year written contract whereby it agreed to purchase the major portion of its monthly supplies from Luria. The effect of the agreement is evidenced by the fact that in 1949 Luria supplied the Los Angeles plant with only one percent of its scrap requirements where as in 1951, it increased to 57 percent and in 1953, it reached 94 percent. Furthermore, in some instances the brokers who had previously supplied the Los Angeles plant were told they would have to sell through Luria.
Luria first supplied the Seattle plant in 1949. By 1952, its sales accounted for 46 percent and by 1954, for 83 percent of the scrap purchased by the plant from broker-dealer sources. Here too, former suppliers were told they would have to sell their scrap through Luria.
Luria’s supply agreements reached such proportions that in 1954, it supplied 80 percent of Bethlehem-Paeific’s scrap requirements resulting in the foreclosure of 40 percent of the Pacific Coast market from competition.
Luria’s exclusive supply agreement for the St. Louis area is indicated by its relationship with Granite City. Prior to 1950, Luria supplied Granite City with only one percent of its scrap, the remaining 99 percent being filled by other brokers and dealers in the area. In March, 1950, Granite City and Luria agreed that the latter would supply the mill. A notice was sent to the trade announcing the “appointment of Luria Brothers & Company, Inc. of Philadelphia, Pennsylvania, as our exclusive scrap broker.” Former suppliers were told to sell through Luria. In 1953, this arrangement accounted for 50 percent of total scrap purchases by the reporting mills in the area.
The same program was carried out in the Pittsburgh-Youngstown area. Luria exhibited the same substantial growth while competitors experienced decreases and were told they must sell through Luria. In this manner Luria has become the exclusive or substantially exclusive broker for Bethlehem’s Johnstown plant, Edgewater, and Weirton, a subsidiary of National Steel. These three plants account for 18 percent of total purchases by all reporting mills in the area and by 1954, Luria accounted for 36 percent of scrap sales by all brokers and dealers in the area.
The Commission’s examination of the scrap purchasing policies of Bucyrus, Mc-Louth, and Detroit Steel, which did not fit into any of the other previously delineated areas, also revealed Luria’s exclusive or substantially exclusive scrap supplying arrangements.
On the basis of the foregoing the Commission decided that Luria’s agreements were in violation of Section 5 of the Federal Trade Commission Act. The petitioning mills challenge these findings claiming (1) the statistical data should not be limited to broker-dealer sources but should include all suppliers of scrap metal; (2) the market areas used by the hearing examiner did not comply with the standards announced by the applicable case law; (3) the agreements were terminable at will and, therefore, do not violate the anti-trust laws; (4) the decision to buy mainly from Luria was a proper business decision independently reached by the petitioning mills; (5) the mills were forced to purchase from Luria because other brokers could not meet their increasing demands; and (6) the order of the Commission is arbitrary, unreasonable and ambiguous. They also claim error in the Commission’s finding of a violation of Section 7 of the Clayton Act. We turn now to a consideration of these points.
The Federal Trade Commission Act
Petitioners urge error in the Commission’s compilation of data. They argue it should not have been restricted to purchases only from broker-dealer sources but should have included the sales of all scrap suppliers to all scrap purchasers. Several reasons justify the exclusion. First, if the Commission had attempted to obtain this information, its task would have reached enormous if not prohibiting proportions. Second, the information obtained contains the scrap purchases of practically every steel mill in the United States. These purchases account for between two-thirds and three-fourths of all the scrap used in the country and of this amount, 90 percent is purchased from broker-dealer sources. Third, the purpose of the proceeding was to open the market to Luria’s competitors who consist of other broker-dealers whose economic livelihood is directly affected by the size of the market freed from monopolistic control. The Commission was not required to include suppliers other than broker-dealers especially since their inclusion would not have substantially altered the result. Cf. United States v. Philadelphia Nat. Bank, 374 U.S. 321, 364, n. 40, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1962).
Petitioners also contend the Commission erred in its determination of the relevant market areas within which to measure the effects of Luria’s influence. The geographical divisions selected by the Commission were based on the natural gravitational effects of economic factors. The evidence indicates and the Commission was warranted in finding that transportation costs produced various clusters of scrap buyers and sellers. Cf. United States v. Philadelphia Nat. Bank, supra, 374 U.S. at page 358, 83 S.Ct. 1715; American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F.Supp. 387, 398 (D.C.S.D.N.Y.1957), aff’d 259 F.2d 524 (2 Cir. 1958). As a rule sales were contained within an area having a radius of approximately 100 miles from the broker-dealer. Shipment beyond this distance became prohibitively expensive. Of course, at times sales were made to plants located more than 100 miles from the broker-dealer, but these long distance sales were an exception and occurred only when needs were such that the closer sellers were unable to meet demands.
Petitioners urge that the theory of the Government’s case was based on Section 3 of the Clayton Act, 15 U.S. C. § 14, because of the emphasis placed on proof of agreements or arrangements between the various mills. They argue, therefore, that their actions and practices must be judged in reference to the standards governing cases arising under the Clayton Act. The error in petitioners’ argument is that it is clear that the proceeding was brought under Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, to enjoin an incipient monopoly which if undeterred would violate Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. Section 5 of the Federal Trade Commission Act proscribes a broad area. The unfair methods of competition violative of that section are not limited to practices violative of the Sherman Act, the Clayton Act or the common law. The Federal Trade Commission Act was designed as a supplement to and has been interpreted as a complement to the Sherman and Clayton Acts. Federal Trade Commission v. Motion Picture Advertising Service Co., 344 U.S. 392, 73 S.Ct. 361, 97 L.Ed. 426 (1953), rehearing denied, 345 U.S. 914, 73 S.Ct. 638, 97 L.Ed. 1348 (1953); Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L. Ed. 1010 (1948), rehearing denied, 334 U.S. 839, 68 S.Ct. 1492, 92 L.Ed. 1764 (1948); Federal Trade Commission v. R. F. Keppel & Bro., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814 (1934); Federal Trade Commission v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587, 75 L.Ed. 1324 (1931). Speaking of the Commission and its function under the Federal Trade Commission Act, the Supreme Court stated:
“Far from being regarded as a rival of the Justice Department and the district courts in dissolving combinations in restraint of trade, the new Commission was envisioned as an aid to them and was specifically authorized to assist them in the drafting of appropriate decrees in antitrust litigation. All of the committee reports and the statements of those in charge of the Trade Commission Act reveal an abiding purpose to vest both the Commission and the courts with adequate powers to hit at every trade practice, then existing or thereafter contrived, which restrained competition or might lead to such restraint if not stopped in its incipient stages.” Federal Trade Commission v. Cement Institute, supra, 333 U.S. at page 692, 68 S.Ct. at page 799.
The same argument raised by petitioners here was considered and rejected by the Supreme Court in its recent decision in Federal Trade Commission v. Brown Shoe Co., 384 U.S. 316, 320, 86 S.Ct. 1501, 1504, 16 L.Ed.2d 587 (1965). The Court stated:
“ * * * the Commission has broad powers to declare trade practices unfair. This broad power of the Commission is particularly well established with regard to trade practices which conflict with the basic policies of the Sherman and Clayton Acts even though such practices may not actually violate these laws. The record in this case shows beyond doubt that Brown, the country’s second largest manufacturer of shoes, has a program, which requires shoe retailers, unless faithless to their contractual obligations with Brown, substantially to limit their trade with Brown’s competitors. This program obviously conflicts with the centrol policy of both § 1 of the Sherman Act and § 3 of the Clayton Act against contracts which take away freedom of purchasers to buy in an open market. Brown nevertheless contends that the Commission has no power to declare the franchise program unfair without proof that its effect ‘may be to substantially lessen competition or tend to create a monopoly’ which of course would have to be proved if the Government were proceeding against Brown under § 3 of the Clayton Act rather than § 5 of the Federal Trade Commission Act. We reject the argument that proof of this § 3 element must be made for as we pointed out above our cases hold that the Commission has power under § 5 to arrest trade restraints in their incipi-ency without proof that they amount to an outright violation of § 3 of the Clayton Act or other provisions of the antitrust laws.”
If we were to accept petitioners’ argument and require proof necessary to show Sherman or Clayton Act violations, we would vitiate the congressional purpose behind the enactment of the Federal Trade Commission Act since the Commission would be powerless to deal with unfair trade practices in their incipient stages. See Atlantic Rfg. Co. v. Federal Trade Commission,
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
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songer_casetyp1_6-3
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C
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What follows is an opinion from a United States Court of Appeals.
Your task is to 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".
SUCRS. DE A. MAYOL & CO., Inc., Defendant, Appellant, v. James P. MITCHELL, Secretary of the United States Department of Labor, Plaintiff, Appellee.
No. 5525.
United States Court of Appeals First Circuit.
Heard Feb. 2, 1960.
Decided. June 30, 1960.
Orlando J. Antonsanti, San Juan, P. R., with whom Alberto J. Torruella, San Juan, P. R., was on brief, for appellant.
Bessie Margolin, Asst. Solicitor, Washington, D. C., with whom Harold C. Ny-strom, Acting Solicitor of Labor, and Sylvia S. Ellison and Beate Bloch, Attys., U. S. Dept, of Labor, Washington, D. C., and Kenneth P. Montgomery, Regional Atty., San Juan, P. R., were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
This action was brought by the Secretary of Labor under section 15(a) (2) of the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-219, in the District Court for the District of Puerto Rico to enjoin defendant from violating the minimum wage and overtime provisions of the act with respect to employees who (a) ordered, made payments for, and kept records of goods received from outside of Puerto Rico; (b) operated its telephone switchboard; (c) received, checked and stored goods awaiting sale and later distribution in Puerto Rico; (d) performed custodial and janitorial service. Defendant conceded at the trial that with respect to many of its employees, it had not met the minimum wage and overtime requirements of the act, but denied that its operations were subject to it. The court issued an injunction, accompanying it with an opinion resolving all issues against the defendant.
Defendant, is engaged in the importation and distribution of hardware, paint, plumbing, miscellaneous building supplies, electrical fixtures, furniture, household equipment, and other goods, in San Juan, Puerto Rico. It has two warehouses. In another building it has its store and office, and additional warehouse facilities. Eighty per cent of the goods sold come from the continental United States. The two questions presented are whether the employees mentioned are “engaged in commerce” within the meaning of the act with respect to these goods, and, if so, whether defendant is exempt under section 13(a) (2) as a “‘retail * * * establishment’ * * * 75 per centum of whose annual dollar volume of sales of goods * * * is not for resale and is recognized as retail sales * * * in the particular industry.” Defendant also complains of the form of the injunction.
Defendant’s imported merchandise arrives at the docks in packages consigned to it. These are delivered to its warehouses by an independent trucker. In one warehouse the trucker’s employees place the packages in an elevator; in the others they are placed inside the door on the floor of the building. The packages are opened by defendant’s employees, who then transport the goods to the appropriate storerooms. In the building containing the elevator the individual goods are checked against invoices in the storerooms. In the others the checking is done before delivery to the rooms. The court held that every employee concerned with the goods up through the point of placing them in the shelves came under the act.
The first question requires a finding of what employees, if any, perform operations which can be considered to be “in commerce.” McLeod v. Threlkeld, 1943, 319 U.S. 491, 497, 63 S.Ct. 1248, 87 L.Ed. 1538; A. B. Kirsehbaum Co. v. Walling, 1942, 316 U.S. 517, 524, 62 S.Ct. 1116, 86 L.Ed. 1638. This, in turn, depends on the limits of interstate or “foreign” movement. We accept the view that interstate commerce ceases when the goods come to rest. See, e. g., Mitchell v. Livingston & Thebaut Oil Co., Inc., 5 Cir., 1958, 256 F.2d 757, 760; James V. Reuter, Inc. v. Walling, 5 Cir., 1943, 137 F.2d 315, 318, reversed on other grounds 1944, 321 U.S. 671, 64 S.Ct. 826, 88 L.Ed. 1001. The difficulty arises in defining the resting point. The Supreme Court has made it apparent that commerce carries through any “temporary pause,” and continues until the originally contemplated journey reaches its end. Walling v. Jacksonville Paper Co., 1943, 317 U.S. 564, 568, 63 S.Ct. 332, 87 L.Ed. 460. In that case the court held that various employees connected with the handling of interstate goods within a warehouse were in commerce because the goods did not come to rest until the completion of a further journey beyond it. In other words, commerce ■continued through the warehouse. In the case at bar commerce clearly ended at the warehouse. The question presented, therefore, is where, within the warehouse, the goods come to rest in such a way as to terminate the flow of commerce. Singularly, this question has seldom been considered. It is true that one court has held that, “Since upon delivery of the goods at defendant’s warehouse, interstate movement has ceased, employees concerned solely with subsequent moving and storing of the goods in the warehouses are not in commerce.” Walling v. Goldblatt Bros., Inc., 7 Cir., 1942, 128 F.2d 778, 783, certiorari denied 318 U.S. 757, 63 S.Ct. 528, 87 L.Ed. 1130. Even there, however, the court’s attention seems to have been focused on the question of whether the goods came to rest at the warehouse, or only later at the retail stores to which they were eventually delivered. 128 F.2d at pages 782-783. If the court did specifically consider the present question, it at least gave no reason why the line should be drawn at the point where the goods entered the building.
In Domenech v. Pan American Standard Brands, Inc., 1 Cir., 1945, 147 F.2d 994, 995, we observed that “the ‘state of rest’ doctrine. * * * holds that the interstate journey ends when the goods come to rest in the wholesaler’s warehouse and are intermingled with the mass of property there.” Cf. “ * * * after the property has arrived and has become commingled with the mass of property within the state.” A. L. A. Schechter Poultry Corp. v. United States, 1935, 295 U.S. 495, 543, 55 S.Ct. 837, 849, 79 L.Ed. 1570. The journey obviously does not terminate simply when the destined owner takes possession (or defendant could solve all its troubles by sending a single employee to the pier), nor should it when the property crosses some particular threshold. In our opinion the placement of a shipment in an elevator, or on the floor by a doorway, results in only a “temporary pause.” We believe we were correct in Domenech in stating that the mingling with other goods in the warehouse is the event which brings about a state of rest, and that this occurs when the goods have been placed in their intended destination, as stock. Cf. McComb v. W. E. Wright Co., 6 Cir., 1948, 168 F.2d 40, 42, cer-tiorari denied 335 U.S. 854, 69 S.Ct. 83, 93 L.Ed. 402. It follows that the court properly concluded that those employees concerned with receiving, checking, and storing goods within the warehouse are “engaged in commerce.”
Under these circumstances no difficulty arises with respect to the other classifications of employees which the court found to be directly connected with these goods while they were in commerce: (a) clerical help concerned with interstate shipments, Mitchell v. E. G. Shinner & Co., 7 Cir., 1955, 221 F.2d 260; Montgomery Ward & Co., Inc. v. Antis, 6 Cir., 1947, 158 F.2d 948, certiorari denied 331 U.S. 811, 67 S.Ct. 1202, 91 L.Ed. 1831; cf. Walling v. Goldblatt Bros., Inc., supra; (b) telephone operator, Mitchell v. Joyce Agency, Inc., 1955, 348 U.S. 945, 75 S.Ct. 436, 99 L.Ed. 740, reversing 7 Cir., 1954, 211 F.2d 241, and affirming Durkin v. Joyce Agency, Inc., 1953; D.C.N.D.Ill., 110 F.Supp. 918; Mitchell v. E. G. Shinner & Co., supra; (d) custodial employees in warehouses, Crook v. Bryant, 4 Cir., 1959, 265 F.2d 541; see Over-street v. North Shore Corp., 1943, 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656.
We turn, therefore, to defendant’s claim of exemption on the ground that “75 per centum of [its] annual dollar volume of sales of goods * * * is not for resale and is recognized as retail sales * * * in the particular industry.” Section 13(a) (2), 29 U.S.C.A. § 213(a) (2) On this the burden is on the defendant. Arnold v. Ben Kanowsky, Inc., 1960, 361 U.S. 388, 393-394, 80 S.Ct. 453, 4 L.Ed.2d 393. Admittedly 21.6% of defendant’s annual sales were to retailers for resale; at least 3.6% more were to building contractors for purposes other than “residential or farm building construction, repair, or maintenance”; 4.1% were to building contractors for. those particular purposes; and 7.7% were made to government agencies under contract. In view of the admitted 21.6%, defendant must show that each of these other categories was not for resale, and, in addition, was recognized as retail in the particular industry.
In Ben Kanowsky the court held that parts sold to a manufacturer to be incorporated into airplanes to be sold as finished products were sold “for resale.” 361 U.S. at page 394. It found in section 3 (n) of the act, (“ ‘Resale’ shall not include the sale of goods to be used in residential or farm building construction, repair, or maintenance,”) 29 U.S.C.A. § 203 (n), “an intent to classify other sales for use in articles to be sold as ‘resale.’ ” 361 U.S. at page 394, note 10, 80 S.Ct. at page 457. We see. no difference between the resale of a completed article containing a defendant’s parts, and the incorporation of a defendant’s material, no doubt at a price, into the property of a contractor’s customers. Consequently, another 3.6% must be added to the admitted 21.6% of defendant’s goods which were sold for resale. The defendant’s case, accordingly, falls be-' fore we reach some potentially interesting questions raised by the court’s exclusion of defendant’s proffered expert testimony as to the nature of the remaining contested categories.
There remains a question as to the form of the injunction. Defendant objects that the wording is general and fails to specify particular employees or particular employments. It is true that civil contempt may result even though the defendant has acted in good faith. McComb v. Jacksonville Paper Co., 1949, 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599. But this is not to say that an injunction may not be couched in general terms. Particularly is this proper where a defendant is independently advised of what the court means to include. The district court’s supporting opinion here made clear which activities were found to be covered. That the defendant understood the scope of the injunction is evidenced by the fact that the description of these activities in the first sentence of our opinion was lifted bodily from defendant’s brief. Some compromise must be effected in a decree between the need for articulation, and the need for sufficient comprehensiveness to prevent “easy evasion.” McComb v. Jacksonville Paper Co., 1949, supra, 336 U.S. at page 193, 69 S.Ct. at page 500; see Aetna Finance Co. v. Mitchell, 1 Cir., 1957, 247 F.2d 190. The objection to the form of the injunction is without merit.
Judgment will be entered affirming the judgment of the District Court.
. Certain special, or “prior,” orders are set apart for the customers. Much of defendant’s brief is an attempt to show that the district court erred with respect to these orders. We do not reach that subject.
. For present purposes we are assuming, in defendant’s favor, that in all other respects it is a “retail establishment” qualified to claim this exemption.
. Cf. Mitchell v. Sherry Corine Corp., 4 Cir., 1959, 264 F.2d 831, certiorari denied 360 U.S. 934, 79 S.Ct. 1453, 3 L.Ed.2d 1546, where sale of food to an airline for consumption by passengers was held to be for resale even though there was no separate specific charge made for food.
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_usc2sect
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204
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 47. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
The COPLEY PRESS, INC., Field Enterprises, Inc., and Los Angeles Times-Washington Post News Service, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Newspaper Publishers Association et al., Intervenors.
No. 24395.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 25, 1971.
Decided May 12, 1971.
Wilkey, Circuit Judge, concurs in result.
Mr. Aloysius B. McCabe, Washington, D. C., with whom Messrs. Donald C. Bee-lar, John L. Bartlett, Washington, D. C., Gerald D. Stern and Robert D. Larsen, New York City, were on the brief, for petitioners.
Miss Katrina Renouf, Counsel, Federal Communications Commission, for respondents. Messrs. John H. Conlin, Associate General Counsel, Edward J. Kuhlmann, Counsel, Federal Communications Commission, and Howard E. Shapiro, Atty., Department of Justice, were on the brief for respondents. Mr. Henry Geller, General Counsel, Federal Communications Commission, at the time the record was filed, also entered an appearance for respondents.
Mr. Hugh B. Cox, Washington, D. C., with whom Mr. Michael Boudin, Washington, D. C., was on the brief, for in-tervenor, American Telephone and Telegraph Co.
Mr. Donald C. Beelar, Washington, D. C., was on the brief for intervenor, American Newspaper Publishers Assn. Mr. Aloysius B. McCabe, Washington, D. C., also entered an appearance for inter-venor, American Newspaper Publishers Assn.
Messrs. Donald C. Beelar and John L. Bartlett, Washington, D. C., were on the brief for intervenor, The Associated Press.
Messrs. Harry J. Ockershausen, Washington, D. C., and John R. Baskin, Cleveland, Ohio, were on the brief for in-tervenor, United Press International, Inc.
Mr. Jack Werner, Washington, D. C., was on the brief for intervenor, Western Union Telegraph Co., Mr. Bartley A. Brennan, Washington, D. C., also entered an appearance for intervenor. Western Union Telegraph Co.
Before TAMM, ROBB and WILKEY, Circuit Judges.
TAMM, Circuit Judge:
In this case we are asked by petitioners to review a decision of the Federal Communications Commission (hereinafter “the Commission”) sustaining an initial decision of its examiner following evidentiary hearings. The issue to be determined is whether the Commission was correct in not affording press users rates more advantageous than those paid by all other commercial customers for certain private line services offered by American Telephone and Telegraph Company (hereinafter “AT&T”) and Western Union Telegraph Company (hereinafter “Western Union”), who also are intervenors in this proceeding. For the following reasons, we affirm the decision of the Commission.
Necessary to a full understanding of this case is a brief analysis of what has transpired in the several years prior to this controversy. Our study must then begin with a proceeding that has been commonly referred to as the Private Line Case, 34 F.C.C. 244 (Initial Decision 1961), 34 F.C.C. 217 (Final Decision 1963), modified 34 F.C.C. 1094 (1963), aff’d sub nom. Wilson & Co. v. United States, 335 F.2d 788 (7th Cir. 1964), cert. denied as to points here relevant, 380 U.S. 951, 85 S.Ct. 1082, 13 L.Ed.2d 968 (1965). In this proceeding the Commission, after a thorough investigation, ordered rate increases for private line telegraph and telephotograph services. These rates were prescribed for “general application.” Private Line Case, supra, 34 F.C.C. at 369. The cost to AT&T and Western Union of providing the service to the press was determined to be, if anything, higher than providing the same service to other users of the private line telegraph and telephotograph systems. Because of this, and since it could not point to any “affirmative policy of the U. S. Government which would require lower private line rates for the press than for other users” (Id.), the Commission “concluded that the record * * * [did] not support [the application of] special press rates, either for private line telegraph or telephotograph services.” Private Line Case, supra, 34 F.C.C. at 370. On reconsideration, however, the Commission instituted “a separate investigation of the charges to the press for private line telegraph and telephotograph services to determine whether the imposition of the same charges applicable to other users would significantly impair the wide-spread dissemination of news information, and, if so, to determine whether we should prescribe or authorize different charges for the press, and, if so, what such charges should be.” Private Line, Case, supra, 34 F.C.C. at 1098. The Commission left undisturbed its prior finding that the rates as applied to the press were otherwise unobjectionable. It was only because the petitions before the Commission raised “substantial questions regarding the impact which changed * * * rates * * * would have upon the dissemination of news information” and the Commission’s awareness of the “public interest” involved in this question that the Commission held an investigation to determine whether the press was entitled to a separate rate classification as authorized by section 201(b) of the Communications Act of 1934 (hereinafter “the Act”). (Id.) Pursuant to its decision to hold the above-mentioned investigation, the Commission shortly thereafter issued the following order:
******
It is ordered, That pursuant to sections 201, 202, 205, and 403 of the Communications Act of 1934, as amended, an investigation is hereby instituted into the lawfulness of the existing rates for private line telepho-tograph services furnished to the press contained in Tariffs F.C.C. Nos. 140 and 208 of the American Telephone and Telegraph Company and Tariff F.C.C. No. 237 of the Western Union Telegraph Company;
It is further ordered, That the investigation shall be limited to the following issues:
1. The extent to which the rates for private line telegraph and private line telephotograph services prescribed in our decision in Docket Nos. 11645 and 11646 for users other than press users would, if applied to press users, im pair the widespread dissemination of news;
2. Whether, in the light of the evidence adduced on the foregoing issue, the rates presently applicable to press users of the above-mentioned services are just and reasonable within the meaning of section 201(b) of the Communications Act of 1934, as amended, or whether they are unjustly discriminatory or unduly preferential or advantageous within the meaning of section 202(a) of such Act;
3. Whether in the light of our determinations on issues 1 and 2 the Commission should prescribe minimum or maximum or minimum and maximum rates to be applied to press users of the above-mentioned services and, if so, what rates should be prescribed:
4? -Jv -X*
28 Fed.Reg. 5540, 5541 (1963) (Emphasis added.) It was pursuant to the above directions of the Commission and the approval of the Seventh Circuit that the investigation now under review by us was initiated. The' issues to be decided have remained substantially the same throughout, although the record at one point was reopened and the issues revised to allow consideration of the effect that subsequently added 1967 rates for non-press users would have upon the widespread dissemination of news if applied to the press. Nowhere, however, was it ordered that the reasonableness of the 1967 rates in their general application was to be determined in the proceeding now under review, but rather the proceeding was to remain one of determining the propriety of establishing “a special press rate classification.” A. T. & T. et al„ 11 F.C.C.2d 689, 694 (1968).
With the above-mentioned history as background we can more intelligently discuss the main issues involved in this appeal. The first problem that arises is determining who has the burden of ultimate persuasion in a proceeding of this nature. Must the press parties affirmatively show that the widespread dissemination of news will be impaired or is it only necessary, as they claim, for them to merely come forward with some meager evidence which thereby shifts the burden of persuasion to the carriers? The press parties also argue that, if the burden of ultimate persuasion is to be placed on their shoulders, they have nevertheless borne it successfully.
Petitioners rely on section 204 of the Act, 47 U.S.C. § 204 (1964), as authority for placing the burden of proof upon the carriers. This section provides in pertinent part:
At any hearing involving a charge increased, or sought to be increased, after the organization of the Commission, the burden of proof to show that the increased charge, or proposed increased charge, is just and reasonable shall be upon the carrier * * *.
47 U.S.C. § 204 (1964). Any reliance by petitioners on this section of the Act is warrantless. The proceeding now under review was by no means a section 204 hearing to determine whether an increased charge was just or reasonable. The reasonableness of the rates is not now our concern, but rather was the object of long and meticulous attention of, and ultimate decision by, commissioners and judges from 1956 through 1964. Private Line Case, supra. The purpose of this proceeding was merely “to determine whether the imposition of the same charges applicable to other users would significantly impair the widespread dissemination of news information, and, if so, to determine whether we should prescribe or authorize different charges for the press, and, if so, what such charges should be.” Private Line Case, supra, 34 F.C.C. at 1098. (Emphasis added.) By the mere reading of the above-quoted sentence it becomes blatantly clear what the proceeding now under review was to entail. First, the Commission was to determine whether the widespread dissemination of news information would be impaired. If it held against the press parties on this issue, then the task of the Commission was completed. It was only if the Commission found an impairment on the widespread dissemination of news information that they were to even consider the question of “different charges for the press.” Furthermore, the word “different” here does not mean an “increased charge” in the sense of section 204 of the Act; it refers only to a separate classification “different” from non-press users. In fact, in none of the Commission orders is section 204 even mentioned. It was termed in simple language in all of the Commission’s orders as a section 201(b) proceeding. Construction of the Commission’s language as calling for a section 204 “increased charge” proceeding, thereby placing the burden of proof on the carriers, simply cannot be justified.
Since section 204 is not applicable in this proceeding, petitioners must rely on other grounds to avoid being saddled with the burden of ultimate persuasion. To determine who has the burden, it is helpful to analyze what must be proved. The petitioners are supplemental news-wire services essentially supplementing, amplifying and augmenting the immediate on-the-spot reports provided by the Associated Press and United Press International through interpretative in-depth reporting of news events. The supplemental provide their parent corporations and member newspapers with these news reports. They also provide this service to any other newspaper who wishes to subscribe. It is alleged by the press parties that the rates currently in effect for non-press users, if applied to the press, would cause the news services to either discontinue the service or raise their prices and as a result lose subscribers. In either event, they claim, there is a significant impairment on the widespread dissemination of news. To solve these issues there must be a factual inquiry. Also true is that there certainly can be no impact on the dissemination of news unless petitioners stop disseminating news or their customers ask them to stop disseminating it. Obviously, petitioners are the only ones who can provide information on these matters so crucial to their claim. This being true, they must necessarily bear the burden of ultimate persuasion. It is petitioners who are requesting the exception, and even when the public interest is involved the burden of proving the exceptional facts rests with the proponents of such exception. See Philadelphia Co. v. S.E.C., 85 U.S.App.D.C. 327, 333, 177 F.2d 720, 726 (1949). This is especially true in a case such as this, where there is a countervailing public interest in equal prices for the same services. See American Trucking Association, Inc. v. F.C.C., 126 U.S.App.D.C. 236, 245, 377 F.2d 121, 130 (1966), cert. denied 386 U.S. 943, 87 S.Ct. 973, 17 L.Ed.2d 874 (1967). See also 47 U.S.C. § 202(a) (1964). In view of the above, and moreover, because petitioners have failed to point to or even suggest any relevant evidence not in their possession, we hold that the burden of ultimate persuasion was properly placed on the petitioners.
Having now put the burden of ultimate persuasion on the petitioners, it is our task to determine whether there is a rational basis for the Commission’s decision that petitioners failed to meet their burden. If petitioners can show either that some of them, because of the increased wire costs, will be forced to discontinue their wire services or that, if these increased wire costs are passed on to their customers, a substantial number of these customers will cancel their subscriptions, then and only then can petitioners be said to have met the ultimate burden of persuasion. Petitioners failed in both respects. Though the percentage increases of charges to the newswire services for telegraph and telephotograph services were in some eases great, in no case was it shown that the total cost under the new rates would amount to more than one percent of the total operating costs of the supplemental wire services’ parent corporations. It is reasonable to assume, and thus proper for the Commission to hold, that such a small increase in operating costs would not cause the parent corporations to discontinue their news services. The fact that most of the supplemental news services have been money-losing operations for years and have still been retained is evidence of their value to the parent and thus, of the unlikelihood of their discontinuance when such a small increase is involved. Now let us examine the factual evidence brought forth by the press parties with regard to their plan to pass on the increased rates by way of increased charges to their subscribers and which subscribers they expect to lose after such increase. Despite the request of the Common Carrier Bureau (App. 154), absolutely no persuasive evidence on these points was forthcoming. The only evidence received remotely relevant on these points was speculative, general and unsupported by factual information. The Executive Vice-President of Field Enterprises, Inc. could only testify that “many of our existing subscribers might be forced to discontinue receiving our service because of these increased expenses.” (App. 202) (Emphasis added.) The Manager of the Los Angeles Times Syndicate and the Los Angeles Times-Washington Post News Service likewise stated that “we might lose * * * a substantial number of subscribers.” (App. 212) (Emphasis added.) A logical, and perhaps inescapable inference one may draw from these uncertain statements is that the news services might not lose any subscribers despite increased costs. Other witnesses that testified for the press parties offered no factual evidence to support their conclusion that they would lose a significant number of subscribers to their newswire services due to the increased costs. In this regard the press parties were unresponsive to the Commission’s legitimate requests for “data showing present and proposed monthly charges [to their subscribers], number of stations in service and number of anticipated station cancellations because of increase in monthly charges.” (App. 154, 163.) “In order to serve the basic interest of the public the Commission is entitled to insist upon more than conclu-sional allegations easily made and which, if accepted, entail unjustified delay and consumption of the Commission’s time and energy.” Folkways Broadcasting Co. v. F.C.C., 126 U.S.App.D.C. 123, 127, 375 F.2d 299, 303 (1967). It is patently obvious then that the press parties utterly failed to carry their burden of showing there would be a significant impairment of the widespread dissemination of news.
The Commission, though not compelled to do so, also specifically affirmed the positive finding of the hearing examiner that the increased charges “would not diminish, limit or impair the widespread dissemination of the news.” A. T. & T. et al., supra, 24 F.C.C.2d at 567. (Emphasis added.) A study of the evidence before it also points to a rational basis for the Commission’s holding on this issue. United Press International and the Associated Press will be able to avoid most of the increased charges at issue since they have converted to a less expensive method of data transmission. Also, it is a fact in the record that “despite increases in subscription charges over the years due to rising operating expenses other than the cost of wire services, United Press International and The Los Angeles Times-Washington Post News Service have experienced increases in the number of subscribers; and Field Enterprises, Inc. has suffered no significant loss of subscribers.” (Id. at 569.) There is also evidence in the record that if a subscriber balks too strenuously when confronted with a steep proposed rate increase, the supplemental news service will attempt to negotiate an amicable settlement. See A. T. & T. et al. (hearing examiner’s initial decision), supra, 25 F.C.C.2d at 16. If this is the case, then it is reasonable to assume that the supplementals will successfully seek to avoid losing as many subscribers as possible, since the purpose of providing the newswire service to subscribers not owned and operated by the supplemental’s parent corporations is not to make a profit but rather to help defray the costs of providing this service for their parents. We find, then, a rational basis for the Commission’s decision that the widespread dissemination of news would not be significantly impaired.
Having carefully considered all issues discussed in this opinion and all others raised in the briefs, we hold that the Commission did not abuse its discretion under section 201(b) in failing to provide a separate rate classification for the press.
Affirmed.
Circuit Judge WILKEY concurs in the result.
. Petitioners here are the Copley Press, Inc., Field Ehterprises, Inc., and the Los Angeles Times-Wasliington Post News Service. Intervenors in support of petitioners are the American Newspaper Publishers Association (hereinafter “ANPA”), the Associated Press and United Press International. These are all newswire services or the parent corporations of such services, which provide hundreds of papers throughout the country with up-to-date news reports and similar material.
. A. T. & T. et al., 24 F.C.C.2d 565 (1970), aff’g hearing examiner’s initial decision, 25 F.C.C.2d 5 (1969).
. Section 201(b) provides in pertinent part:
All charges, practices, classifications, and regulations for and in connection with such communication service shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful: Provided, That communications by wire or radio subject to this chapter may he classified into day, night, repeated, unrepeated, letter, commercial, press, Government, and such other classes as the Commission may decide to he just and reasonable. * * *
47 U.S.C. § 201(b) (1964) (Emphasis added.)
. Wilson & Co. v. United States, 335 F.2d 788 (7th Cir. 1964).
. As previously mentioned, new rates were established in 1967 for non-press users and despite this nowhere was it ordered that the reasonableness of those rates were to be determined in the proceeding under review.
. 8ee footnote 3, supra.
. Petitioners, themselves, at oral argument stated:
Facts concerning adverse impact of news dissemination were obviously peculiarly within press parties’ knowledge. They knew how much they would be hurt.
. In Office of Communication of the United Church of Christ v. F.C.C., 138 U.S. App.D.C. 112, 425 F.2d 543 (1969), the court held that the Commission had an affirmative duty to help develop the record when an intervenor had raised a serious public interest question. In so doing the court refused to place the burden of proof on the intervenor. This case can readily be distinguished from ours. Unlike our case “the type of information [sought was] particularly in the control and at the disposal of [someone other than the intervenor]” (Id. at 116 n. 8, 425 F.2d at 547 n. 8). Furthermore, the Commission, as will be seen later, did not, as it did in United Church of Christ, “sit back and simply provide a forum for the intervenors” (Id. at 116, 425 F.2d at 547), but specifically requested of the petitioners, through its Common Carrier Bureau, the only actual evidence that possibly could have aided petitioners’ case.
. At the present time the same private line services provided the press are also provided to such “public interest” organizations as the American Red Cross and hospitals. There is evidence in the record that if lower rates are provided the press, there will necessarily follow an increase of rates to these non-press users.
. It is argued that the Commission did not actually make the finding since at one point in its order the Commission stated that “[d]ue to the paucity of probative evidence introduced by the press, the extent to which curtailment of news services is likely to occur cannot be determined. * * * ” A. T. & T. ei al. supra, 24 F.C.C.2d at 568. Whether the Commission did or not is, of course, irrelevant since the press parties clearly did not meet their burden of ultimate persuasion. At any rate the Commission did make such a finding (Id. at 567), and in making the above statement the Commission was only echoing the sentiments of one of petitioners’ own witnesses, who said, “There is no way of being mechanically precise about [the prospective loss of subscribers].” (App. 287). In other words, the Commission is saying they do not know exactly how many of the hundreds of newspapers throughout the country will cancel their subscriptions, but they do know that if there are any cancellations, there will be only a few.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 47? Answer with a number.
Answer:
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sc_decisiondirection
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B
|
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.
A QUANTITY OF COPIES OF BOOKS et al. v. KANSAS.
No. 865.
Decided June 12, 1967.
Stanley Fleishman for petitioners.
Robert C. Londerholm, Attorney General of Kansas, for respondent.
Per Curiam.
The petition for a writ of certiorari is granted and the judgment of the Supreme Court of Kansas is reversed. Redrup v. New York, 386 U. S. 767.
The Chief Justice would grant the petition and set the case for oral argument in light of A Quantity of Books v. Kansas, 378 U. S. 205.
Mr. Justice Clark would grant the petition and affirm the judgment.
Mr. Justice Harlan adheres to the views expressed in his separate opinions in Roth v. United States, 354 U. S. 476, 496, and Memoirs v. Massachusetts, 383 U. S. 413, 455, and on the basis of the reasoning set forth therein would affirm.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_r_state
|
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 "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.
Jack W. WHITE, Petitioner-Appellant, v. Hubert D. GNANN, Warden, Effingham Public Works Camp, Springfield, Georgia, Respondent-Appellee.
No. 28499
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 19, 1970.
Jack W. White, pro se.
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Courtney Wilder Stanton, Marion O. Gordon, Asst. Attys. Gen., Atlanta, Ga., for appellee.
Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.
PER CURIAM:
We have concluded on the merits that oral argument is unnecessary in this case. Accordingly, we have directed the Clerk to place the case on the Summary Calendar and to notify the parties of this fact in writing. See Huth v. Southern Pacific Co., 5 Cir. 1969, 417 F.2d 526; Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804; 5th Cir. R. 18.
Jack White, represented by court-appointed counsel, was convicted and sentenced upon his plea of guilty in state court to the charge of larceny of a motor vehicle. When he had exhausted state remedies, White filed a petition for habeas corpus in the district court. He alleges that he was held in jail incommunicado for sixty-five days prior to arraignment and not permitted to get in touch with counsel during that time; that he was wrongfully denied the right to make bond; and that his plea of guilty was coerced in that his lawyer advised that if he did not plead guilty “he stood a good chance of getting ten years” instead of the two years his lawyer had bargained for if he entered a guilty plea. The district court denied relief without holding an evidentiary hearing.
In a prior habeas corpus proceeding on March 13, 1969, the Superior Court of Effingham County, Georgia, held a hearing on all of these contentions. White was represented by counsel. Upon consideration of the evidence presented, the Superior Court denied the petition for habeas corpus with findings of fact and conclusions of law. This judgment was affirmed on appeal to the Supreme Court of Georgia. White has not alleged nor have we discovered anything to justify rejecting these findings of fact. 28 U.S.C. § 2254 instructs us that in these circumstances the state court’s findings are “presumed to be correct”. Thomas v. Simpson, 5 Cir. 1968, 391 F.2d 283.
As characterized by the district court, the Superior Court of Effingham County, Georgia, concluded that the evidence demonstrated White’s guilty plea to have been entered knowingly, deliberately, and voluntarily. White’s fear of receiving a greater sentence by standing trial does not vitiate his plea. Schnautz v. Beto, 5 Cir. 1969, 416 F.2d 214, 215-216; Parrish v. Beto, 5 Cir. 1969, 414 F.2d 770; Rogers v. Wainwright, 5 Cir. 1968, 394 F.2d 492. Since a plea of guilty entered voluntarily and understandingly waives all prior non jurisdictional defects, File v. Smith, 5 Cir. 1969, 413 F.2d 969, we affirm the judgment of the district court.
. 28 U.S.C. § 2254(d) reads:
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant ' shall establish or it shall otherwise appear, or the respondent shall admit—
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court preceding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_usc2sect
|
304
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 17. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Alice CHILDRESS, Plaintiff-Appellee, v. Clarice TAYLOR, Paul B. Berkowsky, the Moms Company, and Ben Caldwell, Defendants-Appellants.
No. 1764, Docket 91-7309.
United States Court of Appeals, Second Circuit.
Argued July 8, 1991.
Decided Sept. 18, 1991.
Peter Herbert, New York City (Baila H. Celedonia, Richard S. Mandel, Alasdair J. McMullan, Cowan, Liebowitz & Latman, New York City, on the brief), for defendants-appellants.
David Blasband, New York City (Nancy F. Wechsler, Jessica R. Friedman, Deutsch Klagsbrun & Blasband, on the brief), for plaintiff-appellee.
Before MESKILL, NEWMAN, and PRATT, Circuit Judges.
JON 0. NEWMAN, Circuit Judge:
This appeal requires consideration of the standards for determining when a contributor to a copyrighted work is entitled to be regarded as a joint author. The work in question is a play about the legendary Black comedienne Jackie “Moms” Mabley. The plaintiff-appellee Alice Childress claims to be the sole author of the play. Her claim is disputed by defendant-appellant Clarice Taylor, who asserts that she is a joint author of the play. Taylor, Paul B. Berkowsky, Ben Caldwell, and the “Moms” Company appeal from the February 21, 1991, judgment of the District Court for the Southern District of New York (Charles S. Haight, Jr., Judge) determining, on motion for summary judgment, that Childress is the sole author. We affirm.
Facts
Defendant Clarice Taylor has been an actress for over forty years, performing on stage, radio, television, and in film. After portraying “Moms” Mabley in a skit in an off-off-Broadway production ten years ago, Taylor became interested in developing a play based on Mabley’s life. Taylor began to assemble material about “Moms” Mab-ley, interviewing her friends and family, collecting her jokes, and reviewing library resources.
In 1985, Taylor contacted the plaintiff, playwright Alice Childress, about writing a play based on “Moms” Mabley. Childress had written many plays, for one of which she won an “Obie” award. Taylor had known Childress since the 1940s when they were both associated with the American Negro Theatre in Harlem and had previously acted in a number of Childress’s plays.
When Taylor first mentioned the “Moms” Mabley project to Childress in 1985, Childress stated she was not interested in writing the script because she was too occupied with other works. However, when Taylor approached Childress again in 1986, Childress agreed, though she was reluctant due to the time constraints involved. Taylor had interested the Green Plays Theatre in producing the as yet unwritten play, but the theatre had only one slot left on its summer 1986 schedule, and in order to use that slot, the play had to be written in six weeks.
Taylor turned over all of her research material to Childress, and later did further research at Childress’s request. It is undisputed that Childress wrote the play, entitled “Moms: A Praise Play for a Black Comedienne.” However, Taylor, in addition to providing the research material, which according to her involved a process of sifting through facts and selecting pivotal and key elements to include in a play on “Moms” Mabley’s life, also discussed with Childress the inclusion of certain general scenes and characters in the play. Additionally, Childress and Taylor spoke on a regular basis about the progress of the play.
Taylor identifies the following as her major contributions to the play: (1) she learned through interviews that “Moms” Mabley called all of her piano players “Luther,” so Taylor suggested that the play include such a character; (2) Taylor and Childress together interviewed Carey Jordan, “Moms” Mabley’s housekeeper, and upon leaving the interview they came to the conclusion that she would be a good character for the play, but Taylor could not recall whether she or Childress suggested it; (3) Taylor informed Childress that “Moms” Mabley made a weekly trip to Harlem to do ethnic food shopping; (4) Taylor suggested a street scene in Harlem with speakers because she recalléd having seen or listened to such a scene many times; (5) the idea of using a minstrel scene came out of Taylor’s research; (6) the idea of a card game scene also came out of Taylor’s research, although Taylor could not recall who specifically suggested the scene; (7) some of the jokes used in the play came from Taylor’s research; and (8) the characteristics of “Moms” Mabley’s personality portrayed in the play emerged from Taylor’s research. Essentially, Taylor contributed facts and details about “Moms” Mabley’s life and discussed some of them with Childress. However, Chil-dress was responsible for the actual structure of the play and the dialogue.
Childress completed the script within the six-week time frame. Childress filed for and received a copyright for the play in her name. Taylor produced the play at the Green Plays Theatre in Lexington, New York, during the 1986 summer season and played the title role. After the play’s run at the Green Plays Theatre, Taylor planned a second production of the play at the Hudson Guild Theatre in New York City.
At the time Childress agreed to the project, she did not have any firm arrangements with Taylor, although Taylor had paid her $2,500 before the play was produced. On May 9, 1986, Taylor’s agent, Scott Yoselow, wrote to Childress’s agent, Flora Roberts, stating:
Per our telephone conversation, this letter will bring us up-to-date on the current status of our negotiation for the above mentioned project:
1. CLARICE TAYLOR will pay ALICE CHILDRESS for her playwriting services on the MOMS MABLEY PROJECT the sum of $5,000.00, which will also serve as an advance against any future royalties.
2. The finished play shall be equally owned and be the property of both CLARICE TAYLOR and ALICE CHIL-DRESS.
It is my understanding that Alice has commenced writing the project. I am awaiting a response from you regarding any additional points we have yet to discuss.
Flora Roberts responded to Yoselow in a letter dated June 16, 1986:
As per our recent telephone conversation, I have told Alice Childress that we are using your letter to me of May 9, 1986 as a partial memo preparatory to our future good faith negotiations for a contract. There are two points which I include herewith to complete your two points in the May 9th letter, i.e.:
1) The $5,000 advance against any future royalties being paid by Clarice Taylor to Alice Childress shall be paid as follows. Since $1,000 has already been paid, $1,500 upon your receipt of this letter and the final $2,500 to be paid upon submission of the First Draft, but in no event later than July 7, 1986.
2) It is to be understood that pending the proper warranty clauses to be in-eluded in the contract, Miss Childress is claiming originality for her words only in said script.
After the Green Plays Theatre production, Taylor and Childress attempted to formalize their relationship. Draft contracts were exchanged between Taylor’s attorney, Jay Kramer, and Childress’s agent, Roberts. During this period, early 1987, the play was produced at the Hudson Guild Theatre with the consent of both Taylor and Childress. Childress filed for and received a copyright for the new material added to the play produced at the Hudson Guild Theatre.
In March 1987, Childress rejected the draft agreement proposed by Taylor, and the parties’ relationship deteriorated. Taylor decided to mount another production of the play without Childress. Taylor hired Ben Caldwell to write another play featuring “Moms” Mabley; Taylor gave Caldwell a copy of the Childress script and advised him of elements that should be changed.
The “Moms” Mabley play that Caldwell wrote was produced at the Astor Place Theatre in August 1987. No reference to Childress was made with respect to this production. However, a casting notice in the trade paper “Back Stage” reported the production of Caldwell’s play and noted that it had been “presented earlier this season under an Equity LOA at the Hudson Guild Theatre.”
Flora Roberts contacted Jay Kramer to determine whether this notice was correct. Kramer responded:
Ben Caldwell has written the play which I will furnish to you when a final draft is available. We have tried in every way to distinguish the new version of the play from what was presented at the Hudson Guild, both by way of content and billing.
Undoubtedly, because of the prevalence of public domain material in both versions of the play, there may be unavoidable similarities. Please also remember that Alice was paid by Clarice for rights to her material which we have never resolved.
Kramer never sent a copy of Caldwell’s play. Childress’s attorney, Alvin Deutsch, sent Kramer a letter advising him of Chil-dress’s rights in the play as produced at the Hudson Guild and of her concerns about the advertising connecting Caldwell’s play to hers. For example, one advertisement for Caldwell’s play at the Astor Place Theatre quoted reviews referring to Chil-dress’s play. Other advertisements made reference to the fact that the play had been performed earlier that season at the Hudson Guild Theatre.
Childress sued Taylor and other defendants alleging violations of the Copyright Act, 17 U.S.C. § 101 et seq. (1988), the Lanham Act, 15 U.S.C. §§ 1051, 1125(a) (1988), and New York’s anti-dilution statute, N.Y. Gen.Bus.Law § 368-d (McKinney 1984). Taylor contended that she was a joint author with Childress, and therefore shared the rights to the play. Childress moved for summary judgment, which the District Court granted. The Court concluded that Taylor was not a joint author of Childress’s play and that Caldwell’s play was substantially similar to and infringed Childress’s play. In rejecting Taylor’s claim of joint authorship, Judge Haight ruled (a) that a work qualifies as a “joint work” under the definition section of the Copyright Act, 17 U.S.C. § 101, only when both authors intended, at the time the work was created, “that their contributions be merged into inseparable or interdependent parts of a unitary whole,” id., and (b) that there was insufficient evidence to permit a reasonable trier to find that Childress had the requisite intent. The Court further ruled that copyright law requires the contributions of both authors to be independently copyrightable, and that Taylor’s contributions, which consisted of ideas and research, were not copyrightable.
Discussion
In common with many issues arising in the domain of copyrights, the determination of whether to recognize joint authorship in a particular case requires a sensitive accommodation of competing demands advanced by at least two persons, both of whom have normally contributed in some way to the creation of a work of value. Care must be taken to ensure that true collaborators in the creative process are accorded the perquisites of co-authorship and to guard against the risk that a sole author is denied exclusive authorship status simply because another person rendered some form of assistance. Copyright law best serves the interests of creativity when it carefully draws the bounds of “joint authorship” so as to protect the legitimate claims of both sole authors and coauthors.
Co-authorship was well known to the common law. An early formulation, thought by Learned Hand to be the first definition of “joint authorship,” see Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 266, 267 (2d Cir.1944) {“Marks”), is set out in Levy v. Rutley, L.R., 6 C.P. 523, 529 (Keating, J.) (1871): “a joint laboring in furtherance of a common design.” Judge Hand endorsed that formulation in the District Court, concluding that the book for the comic opera “Sweethearts” was a work of joint authorship. Maurel v. Smith, 220 F. 195 (S.D.N.Y.1915), aff'd, 271 F. 211 (2d Cir.1921). Three decades later, he adopted the formulation for this Circuit in Marks, determining that the words and music of a song (“December and May”) formed a work of joint authorship even though the lyricist wrote the words before he knew the identity of the composer who would later write the music.
Like many brief formulations, the language from Levy v. Rutley is useful in pointing an inquiry in the proper direction but does not provide much guidance in deciding the close cases. Many people can be said to “jointly labor” toward “a common design” who could not plausibly be considered co-authors. And beyond the fairly straightforward context of words and music combined into a song, whatever formulation is selected will not necessarily fit neatly around such varied fact sitúa-tions as those concerning architectural plans, see Meltzer v. Zoller, 520 F.Supp. 847 (D.N.J.1981), or computer programs, see Askton-Tate Corp. v. Ross, 728 F.Supp. 597 (N.D.Cal.1989), aff'd, 916 F.2d 516 (2d Cir.1990). Though the early case law is illuminating, our task is to apply the standards of the Copyright Act of 1976 and endeavor to achieve the results that Congress likely intended.
The Copyright Act defines a “joint work” as
a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
17 U.S.C. § 101. As Professor Nimmer has pointed out, this definition is really the definition of a work of joint authorship. See 1 Nimmer on Copyright § 6.01 (1991). The definition concerns the creation of the work by the joint authors, not the circumstances, in addition to joint authorship, under which a work may be jointly owned, for example, by assignment of an undivided interest. The distinction affects the rights that are acquired. Joint authors hold undivided interests in a work, like all joint owners of a work, but joint authors, unlike other joint owners, also enjoy all the rights of authorship, including the renewal rights applicable to works in which a statutory copyright subsisted prior to January 1, 1978. See 17 U.S.C. § 304.
Some aspects of the statutory definition of joint authorship are fairly straightforward. Parts of a unitary whole are “inseparable” when they have little or no independent meaning standing alone. That would often be true of a work of written text, such as the play that is the subject of the pending litigation. By contrast, parts of a unitary whole are “interdependent” when they have some meaning standing alone but achieve their primary significance because of their combined effect, as in the case of the words and music of a song. Indeed, a novel and a song are among the examples offered by the legislative committee reports on the 1976 Copyright Act to illustrate the difference between “inseparable” and “interdependent” parts. See H.R.Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976) {“House Report”), reprinted in 1976 U.S.C.C.A.N. 5659, 5736; S.Rep. No. 473, 94th Cong., 2d Sess. 103-04 (1975) (“Senate Report”)
The legislative history also clarifies other aspects of the statutory definition, but leaves some matters in doubt. Endeavoring to flesh out the definition, the committee reports state:
[A] work is “joint” if the authors collaborated with each other, or if each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors as “inseparable or interdependent parts of a unitary whole.” The touchstone here is the intention, at the time the writing is done, that the parts be absorbed or combined into an integrated unit....
House Report at 120; Senate Report at 103 (emphasis added). This passage appears to state two alternative criteria—one focusing on the act of collaboration and the other on the parties’ intent. However, it is hard to imagine activity that would constitute meaningful “collaboration” unaccompanied by the requisite intent on the part of both participants that their contributions be merged into a unitary whole, and the case law has read the statutory language literally so that the intent requirement applies to all works of joint authorship. See, e.g., Weissmann v. Freeman, 868 F.2d 1313, 1317-19 (2d Cir.1989); Eckert v. Hurley Chicago Co., Inc., 638 F.Supp. 699, 702-03 (N.D.Ill.1986).
A more substantial issue arising under the statutory definition of “joint work” is whether the contribution of each joint author must be copyrightable or only the combined result of their joint efforts must be copyrightable. The Nimmer treatise argues against a requirement of copyright-ability of each author’s contribution, see 1 Nimmer on Copyright § 6.07; Professor Goldstein takes the contrary view, see 1 Paul Goldstein, Copyright: Principles, Law and Practice § 4.2.1.2 (1989), with the apparent agreement of the Latman treatise, see William F. Patry, batman’s The Copyright Law 116 (6th ed. 1986) (hereinafter “Latman”). The case law supports a requirement of copyrightability of each contribution. See M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir.1990); S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir.1989); Ashton-Tate Corp. v. Ross, 728 F.Supp. at 601; Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 609 F.Supp. 1307, 1318-19 (E.D.Pa.1985), aff'd without consideration of this point, 797 F.2d 1222 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987); Kenbrooke Fabrics Inc. v. Material Things, 223 U.S.P.Q. 1039, 1044-45, 1984 WL 532 (S.D.N.Y.1984); Meltzer v. Zoller, 520 F.Supp. 847, 857 (D.N.J.1981); Aitken, Hazen, Hoffman, Miller, P.C. v. Empire Construction Co., 542 F.Supp. 252, 259 (D.Neb.1982). The Register of Copyrights strongly supports this view, arguing that it is required by the statutory standard of “authorship” and perhaps by the Constitution. See Moral Rights in Our Copyright Laws: Hearings on S. 1198 and S. 1253 Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Comm, on the Judiciary, 101st Cong., 1st Sess. 210-11 (1989) (statement of Ralph Oman).
The issue, apparently open in this Circuit, is troublesome. If the focus is solely on the objective of copyright law to encourage the production of creative works, it is difficult to see why the contributions of all joint authors need be copyrightable. An individual creates a copyrightable work by combining a non-copyrightable idea with a copyrightable form of expression; the resulting work is no less a valuable result of the creative process simply because the idea and the expression came from two different individuals. Indeed, it is not unimaginable that there exists a skilled writer who might never have produced a significant work until some other person supplied the idea. The textual argument from the statute is not convincing. The Act surely does not say that each contribution to a joint work must be copyrightable, and the specification that there be “authors” does not necessarily require a copyrightable contribution. “Author” is not defined in the Act and appears to be used only in its ordinary sense of an originator. The “author” of an uncopyrightable idea is nonetheless its author even though, for entirely valid reasons, the law properly denies him a copyright on the result of his creativity. And the Register’s tentative constitutional argument seems questionable. It has not been supposed that the statutory grant of “authorship” status to the employer of a work made for hire exceeds the Constitution, though the employer has shown skill only in selecting employees, not in creating protectable expression.
Nevertheless, we are persuaded to side with the position taken by the case law and endorsed by the agency administering the Copyright Act. The insistence on copyrightable contributions by all putative joint authors might serve to prevent some spurious claims by those who might otherwise try to share the fruits of the efforts of a sole author of a copyrightable work, even though a claim of having contributed copyrightable material could be asserted by those so inclined. More important, the prevailing view strikes an appropriate balance in the domains of both copyright and contract law. In the absence of contract, the copyright remains with the one or more persons who created copyrightable material. Contract law enables a person to hire another to create a copyrightable work, and the copyright law will recognize the employer as “author.” 17 U.S.C. § 201(b). Similarly, the person with non-copyrightable material who proposes to join forces with a skilled writer to produce a copyrightable work is free to make a contract to disclose his or her material in return for assignment of part ownership of the resulting copyright. Id. § 201(d). And, as with all contract matters, the parties may minimize subsequent disputes by formalizing their agreement in a written contract. Cf. 17 U.S.C. § 101 (“work made for hire” definition of “specially ordered” or “commissioned” work includes requirement of written agreement). It seems more consistent with the spirit of copyright law to oblige all joint authors to make copyrightable contributions, leaving those with non-copyrightable contributions to protect their rights through contract.
There remains for consideration the crucial aspect of joint authorship — the nature of the intent that must be entertained by each putative joint author at the time the contribution of each was created. The wording of the statutory definition appears to make relevant only the state of mind regarding the unitary nature of the finished work — an intention “that their contributions be merged into inseparable or interdependent parts of a unitary whole.” However, an inquiry so limited would extend joint author status to many persons who are not likely to have been within the contemplation of Congress. For example, a writer frequently works with an editor who makes numerous useful revisions to the first draft, some of which will consist of additions of copyrightable expression. Both intend their contributions to be merged into inseparable parts of a unitary whole, yet very few editors and even fewer writers would expect the editor to be accorded the status of joint author, enjoying an undivided half interest in the copyright in the published work. Similarly, research assistants may on occasion contribute to an author some protectable expression or merely a sufficiently original selection of factual material as would be entitled to a copyright, yet not be entitled to be regarded as a joint author of the work in which the contributed material appears. What distinguishes the writer-editor relationship and the writer-researcher relationship from the true joint author relationship is the lack of intent of both participants in the venture to regard themselves as joint authors.
Focusing on whether the putative joint authors regarded themselves as joint authors is especially important in circumstances, such as the instant case, where one person (Childress) is indisputably the dominant author of the work and the only issue is whether that person is the sole author or she and another (Taylor) are joint authors. See Fisher v. Klein, 16 U.S.P.Q.2d 1795, 1798 (S.D.N.Y.1990); Picture Music, Inc. v. Bourne, Inc., 314 F.Supp. 640, 647 (S.D.N.Y.1970), aff'd on other grounds, 457 F.2d 1213 (2d Cir.), cert. denied, 409 U.S. 997, 93 S.Ct. 320, 34 L.Ed.2d 262 (1972). This concern requires less exacting consideration in the context of traditional forms of collaboration, such as between the creators of the words and music of a song.
In this case, appellant contends that Judge Haight’s observation that “Childress never shared Taylor’s notion that they were co-authors of the play” misapplies the statutory standard by focusing on whether Childress “intended the legal consequences which flowed from her prior acts.” Brief for Appellant at 22. We do not think Judge Haight went so far. He did not inquire whether Childress intended that she and Taylor would hold equal undivided interests in the play. But he properly insisted that they entertain in their minds the concept of joint authorship, whether or not they understood precisely the legal consequences of that relationship. Though joint authorship does not require an understanding by the co-authors of the legal consequences of their relationship, obviously some distinguishing characteristic of the relationship must be understood in order for it to be the subject of their intent. In many instances, a useful test will be whether, in the absence of contractual agreements concerning listed authorship, each participant intended that all would be identified as co-authors. Though “billing” or “credit” is not decisive in all cases and joint authorship can exist without any explicit discussion of this topic by the parties, consideration of the topic helpfully serves to focus the fact-finder’s attention on how the parties implicitly regarded their undertaking.
An inquiry into how the putative joint authors regarded themselves in relation to the work has previously been part of our approach in ascertaining the existence of joint authorship. In Gilliam v. American Broadcasting Companies, Inc., 538 F.2d 14 (2d Cir.1976), we examined the parties’ written agreements and noted that their provisions indicated “that the parties did not consider themselves joint authors of a single work.” Id. at 22 (emphasis added). This same thought is evident in Judge Le-val’s observation that “[i]t is only where the dominant author intends to be sharing authorship that joint authorship will result.” Fisher v. Klein, 16 U.S.P.Q.2d at 1798 (emphasis added). And it echoes the approach taken by then-District Judge Learned Hand when he determined that the facts showed that two authors “agreed to a joint authorship in the piece, and that they accepted whatever the law implied as to the rights and obligations which arose from such an undertaking.” Maurel v. Smith, 220 F. at 198 (emphasis added). See also Weissmann v. Freeman, 868 F.2d at 1318 (each of those claiming to be joint authors “must intend to contribute to a joint work.”). Judge Haight was entirely correct to inquire whether Childress ever shared Taylor’s “notion that they were coauthors of the Play.”
Examination of whether the putative coauthors ever shared an intent to be coauthors serves the valuable purpose of appropriately confining the bounds of joint authorship arising by operation of copyright law, while leaving those not in a true joint authorship relationship with an author free to bargain for an arrangement that will be recognized as a matter of both copyright and contract law. Joint authorship entitles the co-authors to equal undivided interests in the work, see 17 U.S.C. § 201(a); Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1498 (D.C.Cir.1988), aff'd without consideration of this point, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). That equal sharing of rights should be reserved for relationships in which all participants fully intend to be joint authors. The sharing of benefits in other relationships involving assistance in the creation of a copyrightable work can be more precisely calibrated by the participants in their contract negotiations regarding division of royalties or assignment of shares of ownership of the copyright, see 17 U.S.C. § 201(d).
In this case, the issue is not only whether Judge Haight applied the correct standard for determining joint authorship but also whether he was entitled to conclude that the record warranted a summary judgment in favor of Childress. We are satisfied that Judge Haight was correct as to both issues. We need not determine whether we agree with his conclusion that Taylor’s contributions were not independently copyrightable since, even if they were protectable as expression or as an original selection of facts, we agree that there is no evidence from which a trier could infer that Childress had the state of mind required for joint authorship. As Judge Haight observed, whatever thought of co-authorship might have existed in Taylor’s mind “was emphatically not shared by the purported co-author.” There is no evidence that Childress ever contemplated, much less would have accepted, crediting the play as “written by Alice Childress and Clarice Taylor.”
Childress was asked to write a play about “Moms” Mabley and did so. To facilitate her writing task, she accepted the assistance that Taylor provided, which consisted largely of furnishing the results of research concerning the life of “Moms” Mabley. As the actress expected to portray the leading role, Taylor also made some incidental suggestions, contributing ideas about the presentation of the play’s subject and possibly some minor bits of expression. But there is no evidence that these aspects of Taylor’s role ever evolved into more than the helpful advice that might come from the cast, the directors, or the producers of any play. A playwright does not so easily acquire a co-author.
Judge Haight was fully entitled to bolster his decision by reliance on the contract negotiations that followed completion of the script. Though his primary basis for summary judgment was the absence of any evidence supporting an inference that Chil-dress shared “Taylor’s notion that they were co-authors,” he properly pointed to the emphatic rejection by Childress of the attempts by Taylor’s agent to negotiate a co-ownership agreement and Taylor’s acquiescence in that rejection. Intent “at the time the writing is done” remains the “touchstone,” House Report at 120; Senate Report at 103, but subsequent conduct is normally probative of a prior state of mind. See, e.g., United States v. Ramirez, 894 F.2d 565, 569 (2d Cir.1990); United States v. Tramunti, 513 F.2d 1087 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975).
Taylor’s claim of co-authorship was properly rejected, and with the rejection of that claim, summary judgment for Childress was properly entered on her copyright and unfair competition claims, and on defendants' counterclaim. The judgment of the District Court is affirmed.
. The preamble to this draft agreement stated:
The Producer [Taylor] wishes to acquire from the Author [Childress] the rights to produce and present a dramatic play written by Author and heretofore presented at the Hudson Guild Theatre based on the life and career of Moms Mabley....
. The Caldwell play was billed as being “based on a concept by Clarice Taylor." Taylor was not listed as an author of that play.
. Professor Nimmer suggests that the distinction is analogous to the distinction between derivative and collective works, with parts said to be "inseparable" if the contribution of a second author "recasts], transíorm[s] or adapt[s]” the contribution of a first author, and said to be "interdependent" if the contributions of each author are assembled, without recasting, into a collective whole. See 1 Nimmer on Copyright § 6.04 at 6-11; M.G.B. Homes, Inc. v. Ameron Hoes, Inc., 903 F.2d 1486, 1493 (11th Cir.1990). The analogy is inexact at best since the elements of a collective work normally have considerable significance as independent parts; each play in an anthology remains a significant creation even though the selection of plays entitles the anthology to a copyright, and the selection of items to be combined, which produces the copyrightable ingredient of the collective work, normally adds far less significance to the constituent parts than the enhanced effect resulting from the combination of the words and music of a song in a work of joint authorship.
. Two Circuits have adverted to the issue, but found it unnecessary to resolve it. The District of Columbia Circuit has quoted the passage from the Nimmer treatise that argues against a requirement of copyrightability for all contributions to a joint work but then discussed the issue in a footnote beginning “If Nimmer is correct_" Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1496 & n. 15 (D.C.Cir.1988) (emphasis added), aff'd without consideration of this point, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). The Third Circuit has explicitly held the issue open. See Andrien v. Southern Ocean County Chamber of Commerce, 927 F.2d 132, 136 (3d Cir.1991) (in banc).
. Judge Friendly has suggested that the concept of authorship in the constitutional grant implies some limitations. "It would thus be quite doubtful that Congress could grant employers the exclusive right to the writings of employees regardless of the circumstances.” Scherr v. Universal Match Corp., 417 F.2d 497, 502 (2d Cir.1969) (Friendly, J., dissenting), cert. denied, 397 U.S. 936, 90 S.Ct. 945, 25 L.Ed.2d 116 (1970). He suggested that the "work for hire" doctrine, whether applied to employees or independent contractors (commissioned works) squares with the constitutional concept because vesting rights of authorship in the employer is what the parties "contemplated at the time of contracting, or at least what they probably would have contemplated if they had thought about it." Id. However, this seems more like a justification for transfer of ownership than for recognition of authorship. Though the United States is perhaps the only country that confers “authorship” status on the employer of the creator of a work made for hire, see Latman at 114 n. 2, its decision to do so is not constitutionally suspect.
. In some situations, the editor or researcher will be the employee of the primary author, in which event the copyright in the contributions of the editor or researcher would belong to the author, under the "work made for hire” doctrine. But in many situations the editor or researcher will be an independent contractor or an employee of some person or entity other than the primary author, in which event a claim of joint authorship would not be defeated by the "work made for hire” doctrine.
. Obviously, consideration of whether the parties contemplated listed co-authorship (or would have accepted such billing had they thought about it) is not a helpful inquiry for works written by an uncredited "ghost writer," either as a sole author, as a joint author, or as an employee preparing a work for hire.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 17? Answer with a number.
Answer:
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