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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".
TWINING v. COMMISSIONER OF INTERNAL REVENUE.
No. 323.
Circuit Court of Appeals, Second Circuit.
June 1, 1936.
For opinion below, see 32 B.T.A. 600. Watson Washburn, of New York City (Perkins, Malone & Washburn, of New York City, of counsel), for petitioner.
Robert H. Jackson, Asst. Atty. Gen., and Sewall Key and Francis I. Howley, Sp. Assts. to Atty. Gen., for respondent.
Before MANTON, SWAN, and CHASE, Circuit Judges.
SWAN, Circuit Judge.
This proceeding relates to the petitioner’s income tax for the year 1930. The dispute involves the amount of gain realized on a sale of real estate acquired by the taxpayer under the will of his father who died in 1923, survived by his widow and two sons. By his will the father left the residue of his estate, which included real estate on Long Island, to trustees, to pay the income thereof to his widow during her life, and upon her death the residue was devised one-half to the petitioner, with limitations over if he should not then be living, and one-half to trustees for the other son. The widow died in 1926, survived by the two sons. In 1930 the petitioner sold his half interest in the Long Island real estate. The sole issue in dispute is whether the proper cost basis for computing his gain is the value of the real estate at the date of his father’s death or its value at the date of his mother’s death. The commissioner and the board took the former date; the petitioner contends it should be the latter.
Section 113(a)(5) of the Revenue Act of 1928 (45 Stat. 818, 819, 26 U.S.C.A. §113 note) reads in part as follows: “(5) Property Transmitted at Death. If personal property was acquired by specific bequest, or if real property was acquired by general or specific devise or by intestacy, the basis shall be the fair- market value of the property at the time of the death of the decedent. If the property was acquired by the decedent’s estate from the decedent, the basis in the hands of the estate shall be the fair market value of the property at the time of the death of the decedent. In all other cases if the property was acquired either by will or by intestacy, the basis shall be the fair market value of the property at the time of the distribution to the taxpayer.” The question at issue turns upon whether the first sentence or the last sentence of the above-quoted portion of the section applies to the facts at bar.
By the law of New York, where the land was located, the petitioner took under the will of his father a vested remainder even though enjoyment and possession were postponed until the termination of his mother’s equitable life estate and his interest was subject to being divested if he should die before her. New York Real Property Law (Consol.Laws, c. 50) § 40; Moore v. Littel, 41 N.Y. 66, 80. Indeed, it is not disputed that the petitioner took a vested remainder under the will of his father.
In Warner v. Commissioner, 72 F.(2d) 225, this court held that the test for determining when a remainder was “acquired,” within the meaning of the Revenue Act, is whether it is vested or contingent. It is true that the revenue act there under consideration was the 1926 act, but the problem of what was meant by the word “acquired” was not different from what it is under the 1928 act. Literally, therefore, the first sentence of the above-quoted section 113(a)(5) applies; the property “was acquired by general * * * devise.” Had the remainder been contingent, then the last sentence of the section would have been applicable. Such was the case of Lane v. Corwin, 63 F.(2d) 767 (C.C. A.2).
The petitioner asks us to repudiate the distinction between vested and contingent interests as the test for when property is “acquired” by devise and to substitute the "substantial ownership” test expounded in the General Counsel’s Memorandum 10260 (XI-1 CB 79), although the latter test was subsequently abandoned in G.C.M. 1-1893 (XIV-1 CB 202). In Warner v. Commissioner, 72 F.(2d) 225, 227, we refused to accept the substantial ownership test, expressing the view that it was so vague as to be even less satisfactory than to differentiate between vested and contingent remainders “in spite of the casuistry involved” in such differentiation. We are still of that opinion. Nor do we think we are constrained to apply the other test in construing the 1928 act merely because Congress re-enacted the section two months after the “substantial ownership” rule of interpretation was expounded in G.C.M. 10260. This is not a case of long-continued administrative interpretation and application such as was deemed persuasive of legislative adoption by reenactment of the statute in Brewster v. Gage, 280 U.S. 326, 327, 50 S.Ct. 115, 74 L.Ed. 457, and in Bliss v. Commissioner, 68 F.(2d) 890, 892 (C.C.A.2), affirmed 293 U.S. 144, 151, 55 S.Ct. 17, 79 L.Ed. 246, 97 A.L.R. 207.
Order affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_othadmis
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A
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America v. Warren BROWN, a/k/a Prince Asiel, et al., Appellants.
Nos. 86-3065 to 86-3073 and 86-3075.
United States Court of Appeals, District of Columbia Circuit.
Argued May 26, 1987.
Decided July 7, 1987.
E. Edward Bruce (Appointed by this Court), with whom Richard A. Friedman and William J. Garber, Washington, D.C., were on brief, for appellants, Warren Brown, James B. Stone, Gerald E. Bethea, J.C. Vortis, Gregory Coles, Thomas Cavin, Darryl Grissom and Kenneth E. Robinson in Nos. 86-3065, 86-3066, 86-3067, 86-3068, 86-3069, 86-3071, 86-3072, 86-3073 and 86-3075.
David B. Smith (Appointed by this Court), for appellant, Cordell Debardelaben in No. 86-3070.
Russell D. Duncan, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Joseph M. Hannon, Jr., Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Warren Brown entered an appearance pro se in No. 86-3065.
James B. Stone entered an appearance pro se in No. 86-3066.
Gerald E. Bethea entered an appearance pro se in No. 86-3067.
Thomas Cavin entered an appearance pro se in No. 86-3071.
Kenneth E. Robinson entered an appearance pro se in No. 86-3073.
Before MIKVA, BORK and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
MIKVA, Circuit Judge:
Appellants were convicted of a wide variety of criminal charges after thirteen weeks of trial and eight weeks of jury deliberations. We find that the district court’s dismissal of a juror in the midst of the jury’s lengthy deliberations deprived the appellants of their constitutional right to a unanimous jury. We must therefore reverse the convictions.
I. Background
All nine of the appellants in this case are members of a religious group formally titled the “Original Hebrew Israelite Nation of the Kingdom of Jerusalem” and commonly called the “Nation.” Members of the Nation are organized into congregations called “missions”; astride all of these missions are several “ministries” or governing bodies. Appellant Warren Brown is the head of one of the Nation’s ministries, which is located in Chicago; appellants James Stone and Gerald Bethea are members of Brown’s staff. Appellant J.C. Vor-tis leads the Nation’s Baltimore/Washington-area Mission. The remaining appellants in this case — Gregory Coles, Thomas Cavin, Cordell Debardelaben, Daryl Gris-som, and Kenneth Robinson — belong to the Baltimore/Washington-area Mission.
In September of 1985, a grand jury returned a sixty-nine-count indictment against the nine appellants. Count 1 of the indictment charged each appellant with conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity, in violation of section 1962(d) of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (1984). Count 2 of the indictment charged each appellant with actually conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of section 1962(c) of RICO. The enterprise alleged in these two counts was “a group of individuals associated in fact which operated within the framework of a larger group ... [called] The Nation” and organized itself along similar hierarchical lines. The pattern of racketeering activity alleged in the two counts consisted of fifteen discrete acts, each of which fell within section 1961(l)’s definition of “racketeering activity.” Subsequent counts of the indictment listed these fifteen predicate acts as separate and independent offenses. Still other counts charged offenses that were not also listed as RICO predicate acts because they did not fall within section 1961(l)’s definition of “racketeering activity.”
The multitude of offenses charged in the indictment arose from a smaller number of alleged criminal schemes. The most common kind of scheme alleged was the so-called “shopping spree.” According to the indictment, in each of these sprees, a member of the enterprise, employing an assumed name and counterfeit identification, opened a checking account with a small cash deposit at a local bank. The member then deposited forged checks into the account, thereby artificially inflating its balance. A short time later, the member went shopping. In essence, the member wrote worthless checks as payment for valuable goods, using a counterfeit driving license and counterfeit credit cards as supporting identification. (Occasionally, the member simply used the counterfeit credit cards to pay for the desired goods.) When the bank discovered that the original deposit checks were forgeries and refused to honor a written check, the member abandoned the account. Another common kind of criminal scheme described in the indictment was the theft and use of blank airline ticket stock. According to the indictment, in each scheme of this kind, a member of the enterprise stole a large quantity of blank ticket stock from an airline company. Members of the enterprise then prepared counterfeit tickets from the stock and either used them for personal travel or sold them to individuals not associated with the enterprise. Finally, the indictment alleged that members of the enterprise had participated in two schemes to defraud the government. In one scheme, members of the enterprise allegedly obtained welfare benefits by fraud; in the other scheme, members allegedly planned to obtain social security benefits in a fraudulent manner.
Trial of the nine appellants commenced on March 10, 1986 and continued for thirteen weeks. In the government’s case-in-chief, prosecutors presented testimony from more than one hundred witnesses and introduced a mass of documentary and physical evidence, including handwriting analyses, fingerprint identifications, and stolen credit cards and checks. The prosecutors also played to the jury nearly one hundred hours of tape-recorded telephone conversations between members of the alleged enterprise. The appellants earlier had objected to the admission of these recordings on the ground that they had been illegally obtained, but the trial judge had refused to suppress the evidence.
Six of the nine appellants represented themselves for large portions of the trial. On March 24, 1986, after two weeks of trial, Stone, Bethea, Vortis, Cavin, and Robinson dismissed their court-appointed counsel; each of these appellants represented himself for the remainder of the trial. On May 27, the fourth day of the defense case, Brown discharged his retained counsel; he too represented himself for the duration of the trial. Prior to allowing any of these appellants to proceed pro se, the court questioned the voluntariness of their decisions and warned them of the hazards of self-representation present in all serious criminal cases.
On June 6, the jury began its deliberations. On July 8, after five weeks of deliberations, the jury sent a note to the judge asking: “When is a defendant not guilty? When all jurors give a unanimous verdict vote of not guilty or, at least, one gives a vote of not guilty?” VI Joint Appendix (J.A.) at 7246. The next morning, the court returned a note to the jury stating:
In response to your note of yesterday, I instruct you as follows: In order to return a verdict of either guilty or not guilty as to a defendant on any count, your decision must be unanimous. With respect to those counts and those defendants on which you have not yet reached agreement, please continue your deliberations in an effort to reach an unanimous verdict of either guilty or not guilty.
Id. at 7252. On the afternoon of the same day, one of the jurors sent a note to the court stating: “I Bernard Spriggs am not able to discharge my duties as a member of this jury.” Id. at 7257. After conferring with counsel, the court decided to call Spriggs into the courtroom and attempt to discover his reason for wanting to quit deliberations. When Spriggs entered the courtroom, the following discussion, quoted in its entirety, occurred:
COURT: I have your note which reads, “I Bernard Spriggs, am not able to discharge my duties as a member of this jury.” That is your note, is it?
SPRIGGS: Yes, it’s my note.
COURT: May I ask you this question: Does this have to do with your health?
SPRIGGS: No.
COURT: Up to this point have you been able to, as you say, discharge your duties?
SPRIGGS: Up to this point, yes.
COURT: Now, I don’t want to know how you have voted, or the jury has voted, on anything with respect to any defendant.
But can you tell us just generally what the nature of the problem is. Could it be a personality problem between you and other members, or any one or more members of the jury, or is it something else?
SPRIGGS: No; it’s not a personality problem. It’s the way the R.I.C.O. conspiracy act reads. And considering how it runs, I cannot—
COURT: All right.
You cannot what?
SPRIGGS: I cannot—
COURT: Do you understand it?
SPRIGGS: I understand it.
COURT: I see.
SPRIGGS: But at this point I can’t go along with that act.
If I had known at the beginning of this trial what the act said, I would have not said I could be impartial.
COURT: Because what you’re saying is you don’t like the law and you can’t follow the law and my instructions on the law because you disagree with it; is that what you mean?
SPRIGGS: I disagree with it; yes.
COURT: And, is that what you mean when you say you’re not able to discharge your duties, because you can’t follow the law? You disagree with the law? And if you had known more clearly what the law said—
SPRIGGS: Yes.
COURT: —You would have indicated on the voir dire—
SPRIGGS: Yes, sir; Yes, sir.
COURT: —When I asked you that question, would you follow the court’s instructions, you would say “No, because I don’t like the law”?
SPRIGGS: It’s the way it’s written and the way the evidence has been presented.
COURT: If the law were different, maybe you could go along — but your understanding—
SPRIGGS: If the evidence was presented in a fashion in which the law is written, then, maybe, I would be able to discharge my duties. But to me—
COURT: I don’t want to know anything about your individual verdict or expression. I just want to know — we were trying to find out what the nature of your problem was because you ve been on this case since the third of March and you’ve [sic] haven’t missed a beat.
SPRIGGS: No.
COURT: What I’d ask you to do-Ralph, would you ask — Mr. Spriggs, would you just go and sit in my chambers for a minute and let me have an opportunity to talk to the lawyers and then I’ll get back to you. Thank you.
Id. at 7265-67. The court discussed the issue with counsel that afternoon and the next morning. The prosecution argued that Spriggs had stated that he would not follow the law and further contended that the court had a duty to dismiss a juror who would not follow the law, even after the commencement of deliberations. Defense counsel argued that Spriggs had expressed difficulties with the evidence and that dismissing him in these circumstances would violate the defendants’ constitutional rights. The court at one point expressed the view that Spriggs’ reasons for thinking himself incapable of performing his functions as a juror were not entirely clear. The judge decided, however, that he could not question Spriggs any further because additional inquiry would intrude on the secrecy of the jury’s deliberations. The judge then determined to dismiss Spriggs under Federal Rule of Criminal Procedure 23(b), which allows a court to excuse a juror if “necessary” and “for just cause” after the start of deliberations, on the ground that Spriggs would not follow the law and thus could not discharge his duty as a juror. The court admonished the remaining eleven jurors that the dismissal was not to influence their consideration of the case and instructed them to return to deliberations.
The jury returned its verdict on July 30, eight weeks after the start of deliberations and three weeks after the discharge of Spriggs. The jury convicted the appellants of both of the RICO violations alleged in the indictment and also returned convictions on most of the other offenses charged. The court entered a judgment on the verdict and two weeks later sentenced the appellants to lengthy prison terms.
The appellants, who already have begun to serve these prison terms, now appeal the court’s entry of judgment on the jury verdict. The appellants present a wide variety of arguments in support of reversing some or all of the convictions. Most notably, the appellants urge that we must reverse the convictions because the district court’s dismissal of juror Spriggs deprived them of their constitutional right to a unanimous jury. The appellants also present arguments relating to the joinder of offenses in the indictment, the court’s response to the requests of several appellants to proceed 'pro se, and the court’s admission into evidence of the tape-recorded telephone conversations.
II. Discussion
A. Dismissal of Juror Spriggs
The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” In Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), five members of the Supreme Court interpreted this amendment to endow a federal criminal defendant with the right to a unanimous verdict. See 406 U.S. at 369-71, 92 S.Ct. at 1637 (Powell, J., concurring); id. at 382, 92 S.Ct. at 1644 (Douglas, J., dissenting); id. at 395, 92 S.Ct. at 1650 (Brennan, J., dissenting); id. at 400, 92 S.Ct. at 1652 (Marshall, J., dissenting); id. at 414, 92 S.Ct. at 1634 (Stewart, J., dissenting). This circuit has reiterated the Justices’ constitutional interpretation. See United States v. Essex, 734 F.2d 832, 840-41 (D.C.Cir.1984). In addition, the Federal Rules of Criminal Procedure echo the constitutional requirement of unanimity: Rule 31(a) states simply that “[t]he verdict shall be unanimous.”
The appellants claim that the district court’s decision to dismiss juror Spriggs from the jury violated their right to a unanimous verdict. They first aver that Spriggs requested dismissal not because he had principled objections to the RICO statute, but because he had doubts about the sufficiency of the government’s evidence. According to the appellants, the dismissal of a juror for this reason violates a defendant’s right to a unanimous verdict because the dismissal allows the prosecutor to gain a conviction even though he has failed to persuade all of the jurors that the defendant violated the law. The appellants next argue that even if Spriggs’ discomfort with the case stemmed solely from a principled objection to applying the substantive law, the court could not constitutionally discharge him from the jury. In essence, the appellants contend that a juror will vote to convict a defendant only when the juror believes both that the defendant violated the law and that the jury should give effect to the law. In the appellants’ view, the discharge of a juror for refusing to follow the law violates the defendant’s right to a unanimous verdict because the discharge allows a conviction to occur even though not all members of the jury wish to apply the law to the defendant’s conduct. The appellants recognize, in making these arguments, that Rule 23(b) of the Federal Rules of Criminal Procedure authorizes the discharge of a juror after deliberations have commenced “if ... necessary” and “for just cause.” The appellants aver, however, that use of the Rule to discharge a juror either because he has doubts about the sufficiency of the government’s evidence or because he refuses to apply the substantive law violates a defendant’s constitutional right to a unanimous jury.
We agree with the appellants that a court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the government’s evidence. Indeed, we think that this part of the appellants’ argument is scarcely debatable. If a court could discharge a juror on the basis of such a request, then the right to a unanimous verdict would be illusory. A discharge of this kind would enable the government to obtain a conviction even though a member of the jury that began deliberations thought that the government had failed to prove its case. Such a result is unacceptable under the Constitution. Thus, when a request for dismissal stems from the juror’s view of the sufficiency of the evidence that the government offered at trial, a judge may not discharge the juror: the judge must either declare a mistrial or send the juror back to deliberations with instructions that the jury continue to attempt to reach agreement.
We must, however, confront the problem that the reasons underlying a request for a dismissal will often be unclear. As the district court in this case aptly noted, a court may not delve deeply into a juror’s motivations because it may not intrude on the secrecy of the jury’s deliberations. Thus, unless the initial request for dismissal is transparent, the court will likely prove unable to establish conclusively the reasons underlying it. Given these circumstances, we must hold that if the record evidence discloses any possibility that the request to discharge stems from the juror’s view of the sufficiency of the government’s evidence, the court must deny the request. Cf. Essex, 734 F.2d at 843 (finding a violation of the defendant's right to a unanimous verdict because there was a “possibilit[y]” that the absent juror was “a lone holdout for innocence in the face of a hostile pro-conviction majority” and that the prosecution had not carried its “burden of convincing the entire membership of the jury”); United States v. Stratton, 779 F.2d 820, 832 (2d Cir.1985) (holding that the discharge of a juror to observe a religious holiday was proper when “the record d[id] not present even the slightest basis to believe that Juror No. 10 [posed] an obstacle to reaching a unanimous verdict”), cert. denied, - U.S.-, 106 S.Ct. 2285, 90 L.Ed.2d 726 (1986). Any other holding would fail to protect adequately a defendant’s right to be convicted only by a unanimous jury.
The record evidence in this case indicates a substantial possibility that juror Spriggs requested to be discharged because he believed that the evidence offered at trial was inadequate to support a conviction. At the beginning of his colloquy with the judge, Spriggs stated that his difficulties with the case arose from the terms of the RICO statute-"what the act said" and "how it runs." As the judge continued to question Spriggs, however, the juror began to speak of the evidence offered at the trial. Spriggs specifically stated that his difficulty was with "the way [the act is] written and the way the evidence has been presented" (emphasis added); he further noted that "[i]f the evidence was presented in a fashion in which the law is written, then, maybe, I would be able to discharge my duties." These statements, at the very least, create an ambiguous record. The district court itself recognized as much. See VI J.A. at 7297-98, 7309, 7312, 7314. We may not be able to say for a certainty that Spriggs' desire to leave the jury stemmed from his view of the adequacy of the government's evidence. But we cannot say with any conviction that Spriggs' request to be dismissed stemmed from something other than this view. Given the pos. sibility-which in this case we think a likelihood-that Spriggs' desire to quit deliberations stemmed from his belief that the evidence was inadequate to support a conviction, we must find that his dismissal violated the appellants' right to a unanimous jury verdict.
We note in conclusion, and in response to the government's primary argument on appeal, that the terms of Rule 23(b) in no way undermine our approach. As we have noted, Rule 23(b), under which the district court dismissed juror Spriggs, authorizes the discharge of a juror after deliberations have commenced "if ... necessary" and "for just cause." The government argues that our holding will "effectively read 23(b) out of the federal rules-[the Rule's] purpose is precisely to make available a remedy between the extremes of mistrial and doing nothing." Brief for Appellee at 87. This assertion, however, is invalid. First, to the extent that we limit the ability of courts to use Rule 23(b), we do so by command of the Constitution. When, as in this case, the Constitution precludes a particular application of a rule or statute, that is the end of the matter. Second, our holding cannot reasonably be said to erase Rule 23(b) from the federal books. Courts may use Rule 23(b) in many circumstances to discharge a juror. For example, other appellate courts have held that a district court may properly use Rule 23(b) to discharge a juror who has suffered serious injury, see United States v. Smith, 789 F.2d 196, 204-05 (3d Cir.), cert. denied, - U.S. -, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986), who has viewed relevant materials not in evidence, see United States v. Gambino, 788 F.2d 938, 946-49 (3d Cir.), cert. denied, - U.S. -, 107 S.Ct. 98, 93 L.Ed.2d 49 (1986), and who has expressed a desire to observe a lengthy religious holiday, see Stratton, 779 F.2d at 831-32. These holdings are fully consistent with our own given that in none of these circumstances is there any reason to believe that the government has failed to persuade all of the jurors who began deliberations of the adequacy of the government's case. In addition, we specifically leave open the question that appellants raise of whether a court may constitutionally apply Rule 23(b) to discharge a juror for refusing to apply the relevant substantive law. We today hold only that Rule 23(b) is not available when the record evidence discloses a possibility that the juror believes that the government has failed to present sufficient evidence to support a conviction. Because the record evidence in this case discloses just such a possibility, we must reverse the convictions.
B. Guidance to District Court on Retrial
Our decision to reverse the convictions in this case because of the discharge of juror Spriggs may well lead to a retrial of the appellants. In a retrial, the district court will almost certainly confront four of the many issues that the appellants have raised on appeal. We have received the benefit of full briefing and argument on these four issues, and we believe it appropriate to discuss them briefly. We hope these preca-tory words will promote an equitable, orderly, and efficient retrial, if a retrial indeed takes place.
The appellants have argued to this court that the government's decision to join the offenses that were not chargeable as RICO predicate acts to the other offenses in the indictment violated Federal Rule of Criminal Procedure 8(b), which controls joinder of offenses in indictments that charge two or more defendants. The appellants appear to take the view that offenses not chargeable as RICO predicate acts may never be joined to an indictment alleging RICO offenses and offenses chargeable as RICO predicate acts. We presume that the appellants will press this argument below in an attempt to sever some of the offenses. The argument, however, has no merit. Rule 8(b) allows the joinder of offenses when they arise out of a single “series of acts or transactions.” This court has stated a “series of acts or transactions” is “two or more acts or transactions connected together or constituting parts of a common scheme or plan.” United States v. Perry, 731 F.2d 985, 990 (D.C.Cir.1984). Thus, an offense that is chargeable as a RICO predicate may be joined to an offense that is not chargeable as a RICO predicate so long as the two offenses satisfy this test of “logical relationship.” Id. We think that all of the offenses charged in this indictment are related in such a way as to make joinder appropriate. The offenses that were not chargeable as RICO predicates were committed at the same times, by the same persons, in accordance with the same general methods, and in pursuance of the same broad schemes as the offenses chargeable as RICO predicates. All of the offenses charged, in other words, arose out of the same “series of acts or transactions”; the offenses were therefore properly joined in a single indictment.
The appellants also have contended that the district court erred in admitting the tape-recorded telephone conversations into evidence at the trial. The government garnered these recordings by placing wiretaps on four telephones in the District of Columbia area. A district court judge had authorized these wiretaps on the basis of an FBI agent’s affidavit. Under the federal wiretap-authorization statute, a judge may authorize a wiretap only if the government has made a particularized showing that traditional “investigative procedures have been tried and failed or ... reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(l)(c), (3)(c) (1970). The appellants concede that the government made such a showing with respect to the “Chicago defendants” (.e., Brown, Stone, and Bethea); traditional investigative techniques had failed to uncover these defendants’ activities. The appellants aver, however, that the government failed to make such a showing with respect to the “Washington-area defendants.” In these circumstances, appellants claim, the court reviewing the affidavit could lawfully have authorized the government to tap the phones of the Chicago defendants, but had no authority to permit the government to tap the phones of the Washington-area defendants. The appellants conclude that the trial court should therefore have suppressed the evidence derived from the four wiretaps.
We believe that this argument misconstrues both the government’s affidavit and the relevant case law. The affidavit did indicate that traditional investigative techniques had yielded some evidence against the Washington-area defendants. But the affidavit also showed that these techniques had failed — and would likely continue to fail — to disclose the full nature and extent of the conspiracy of which the Washington-area defendants were a part. This circuit already has held that a court may authorize the wiretap of the phone of a member of an operation if traditional investigative techniques have proved inadequate to reveal the operation’s full “nature and scope.” United States v. Williams, 580 F.2d 578, 590 (D.C.Cir.), cert. denied, 439 U.S. 832, 99 S.Ct. 112, 58 L.Ed.2d 127 (1978); see id. at 590 n. 73; see also United States v. Vento, 533 F.2d 838, 850 (3d Cir.1976) (stating that when necessary, wiretaps “may be employed to discover the full extent of ... conspiracies”). The appellants’ attempt to bifurcate the “Chicago defendants” from the “Washington-area defendants” thus fails. The government made a particularized showing that the Washington-area defendants were members of a conspiracy whose full extent could be determined only through wiretapping. This showing was sufficient to allow the district court to authorize the government to tap the phones of the Washington-area defendants. The trial court therefore acted correctly in admitting the evidence derived from the taps.
Another of the appellants’ arguments focuses on the response of the trial court to the requests of several of the appellants to discharge their counsel and proceed pro se. Criminal defendants, of course, have a constitutional right to defend themselves. See Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562 (1975). Courts must ensure, however, that a defendant’s decision to represent himself is knowing and intelligent. See id. Thus, the Supreme Court has required trial courts to make defendants “aware of the dangers and disadvantages of self-representation.” Id. In addition, this court has stated that trial courts must engage defendants in a “short discussion on the record” regarding these dangers and disadvantages. United States v. Bailey, 675 F.2d 1292, 1300 (D.C.Cir.), cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982). The appellants contend that the trial court in this case failed to warn them adequately of the hazards of self-representation. The appellants concede that the court informed them in general terms of the dangers of proceeding pro se; the appellants’ argument rests entirely on the failure of the court to discuss the especially complex nature of RICO cases and the difficulties of preparing an unaided defense while incarcerated. We think this argument must fail. The record discloses that the trial court engaged in a full discussion with the appellants regarding the dangers of self-representation. The judge informed the appellants of the seriousness of the charges against them, warned them that he could not assist in their defense, told them that he would have to conduct the trial in accord with the Federal Rules of Evidence and Criminal Procedure, and stated that “it is a distinct handicap to be engaged in a serious criminal matter without any legal training or background and without the active assistance of a trained lawyer.” I J.A. at 1487. In addition, the judge asked the appellants many times whether they understood his comments and whether they had any questions. We regard this colloquy as a model. Neither case law nor common sense supports the position that a trial court must advise a defendant of each and every difficulty he might encounter in a particular case. If the appellants again elect to proceed pro se, the trial court need do no more than it did in the initial trial.
The last of the appellants’ arguments that we take up concerns the Pinkerton doctrine. In Pinkerton v. United States, 328 U.S. 640, 645-48, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946), the Supreme Court held that a conspirator could be found guilty of the substantive offenses of other conspirators if the offenses were committed in furtherance of the conspiracy. The government attempts to support the conviction of appellant Bethea on several counts by reference to the Pinkerton doctrine; the government contends that notwithstanding the absence of evidence that Bethea participated directly in certain offenses, he was properly convicted of the offenses because he was a member of the conspiracy and his co-conspirators committed the offenses in furtherance of the conspiracy. Bethea replies that a conviction may be upheld under Pinkerton only if the court has instructed the jury of that doctrine. We agree. The Supreme Court has stated specifically that the Pinkerton doctrine will not support a conviction unless the court has given the jury a Pinkerton instruction. See Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949); see id. at 621, 69 S.Ct. at 770 (Frankfurter, J., dissenting). If the government wishes to rely on the Pinkerton theory on retrial, the government must request and receive the appropriate instruction.
III. Conclusion
We are aware of the length and cost of the trial that took place in the court below. We are aware of the painstaking, conscientious, and sensitive manner in which the district court handled the peculiar problems of the trial. Finally, we are aware of the apparent strength of the government’s case against the nine appellants. But we cannot factor any of these considerations into our decision. The record evidence discloses a real possibility that one juror, for whatever reason, was not persuaded that the government had met its evidentiary burden. The dismissal of this juror violated the appellants’ constitutional right to a unanimous verdict. We must therefore reverse the convictions.
It is so ordered.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_civproc2
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if less than two federal rules of civil procedure are cited. For ties, code the first rule cited.
HINES, INCORPORATED, a corporation, as owner and operator of the M/V THOMAS W. HINES, BARGES HINES 411B and HINES 414 and as Charterer and Operator and Owner Pro Hac Vice of the BARGE HINES 410, for Limitation of or Exoneration from Liability, Petitioner-Appellant, v. UNITED STATES of America, Claimant-Appellee.
No. 75-1765.
United States Court of Appeals, Sixth Circuit.
Argued April 9, 1976.
Decided March 2, 1977.
As Amended on Rehearing June 23,1977.
Wilder Lucas, Joseph A. Murphy, Lucas & Murphy, St. Louis, Mo., James G. Wheeler, Wheeler, Myre & Myre, Ky., Paducah, Ky., for petitioner-appellant.
Donald Kronenberger, Admiralty & Shipping Section, Dept, of Justice, Washington, D.C., George J. Long, U.S. Atty., Louisville, Ky., for claimant-appellee.
Before EDWARDS and CELEBREZZE, Circuit Judges, and HOGAN, District Judge.
Honorable Timothy S. Hogan, Chief United States District Judge for the Southern District of Ohio, sitting by designation.
EDWARDS, Circuit Judge.
This is a case of first impression involving a conflict between two statutes in the field of Admiralty. They are the Limitation of Liability Act, adopted in 1851, 46 U.S.C., § 181 et seq. (1970), and the Rivers and, Harbors Act, originally passed in 1899, 33 U.S.C. § 401 et seq. (1970). We believe that, the plain purposes of the Rivers and Harbors Act which we construe here cannot be served by subordinating it to the Limitation of Liability Act which Congress adopted in 1851 and that Congress did not intend the subordination to that Act which appellant now seeks. As a consequence, we hold that the statute later in time (The Rivers and Harbors Act) served to amend the unlimited language of the 1851 Limitation of Liability Act. We therefore affirm the order of the District Court which, by implication, reached this same result.
This is an admiralty case involving a series of accidents which occasioned loss of life and great property damage. An Ohio River tug owned and operated by appellant Hines was proceeding downstream when the Ohio River was at flood stage with three barges in its tow, two of which were loaded with gasoline. Attempting to enter the locks in a newly constructed government project, the tow boat was driven by strong water currents through the sluice gate and broke loose from its barges. Two of the barges struck the dam and locks, caught fire and sank, occasioning the major part of the property damage involved in the ease.
The pilot on the tugboat was lost at the time the tugboat went through the sluice gate and a claim has been filed on behalf of his survivors. Claims asserting injuries to other members of the crew have also been filed.
Hines initiated the first proceeding in this case by seeking limitation of liability in federal court and served notice on all of the parties to this proceeding. The United States appeared at the limitation proceeding and filed its claims. After Hines had filed an answer and counterclaim, the United States of America subsequently filed a motion to be exempted from the restraining order which had routinely issued restraining any other actions. The District Judge entered an order granting relaxation of the restraining order and allowing the filing of the government’s action. It is from the order printed below that Hines has now taken an appeal under 28 U.S.C. § 1292(a)(1) (1970):
1. It appearing to the Court that the United States is entitled to an order relaxing the injunction contained in the Court’s Order for Ad Interim Stipulation and Directing Issuance of Notice and Restraining Suits, entered May 10, 1972, and permitting the United States to file a complaint for damages and penalties pursuant to the Rivers and Harbors Act, 33 U.S.C. 401 et seq., it is therefore
2. Ordered, Adjudged and Décreed that the action pursuant to 33 U.S.C. 409, 411, 412, 414, and 415 for the costs incurred by the United States in removing the wrecks of Barge Hines 410 and Hines 411-B is not subject to the injunction contained in the Court’s Order for Ad Interim Stipulation and Directing Issuance of Notice and Restraining Suits entered in this limitation proceeding on May 10,1972; and it is further
3. Ordered, Adjudged and Decreed that the action pursuant to 33 U.S.C. 408, 411, and 412 for the costs incurred by the United States in making emergency, temporary, and permanent repairs to the completed portion of Cannelton Locks and Dam that sustained damage from being struck by the M/V Thomas W. Hines flotilla on April 20, 1972, is not subject to the injunction contained in the Court’s Order for Ad Interim Stipulation and Directing Issuance' of Notice and Restraining Suits entered in this limitation proceeding on May 10, 1972; and it is further
4. Ordered, Adjudged and Decreed that the action pursuant to 33 U.S.C. 408, 409, 411 and 412 for pecuniary penalties is not subject to the injunction contained in the Court’s Order for Ad Interim Stipulation and Directing ■ Issuance of Notice and Restraining Suits entered in this limitation proceeding on May 10, 1972; and it is further
5. Ordered, Adjudged and Decreed that the complaint of the United States for damages and penalties pursuant to the Rivers and Harbors Act, 33 U.S.C. 401, et seq., predicated upon the collision of the M/V Thomas W. Hines flotilla with Cannelton Locks and Dam on April 20, 1972, is ordered Filed; and it is further
6. Ordered, Adjudged and Decreed that the Motion for Relaxation of Restraining Order filed by the United States is hereby granted.
(Numbering of paragraphs added.)
We are persuaded that the Supreme Court decision in Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), establishes that the government has a right to in personam relief against the owner of a vessel for the negligent sinking of such vessel in the navigable waterways. The rationale of this opinion, which we quote extensively, applies to all the critical issues in this case.
In Wyandotte the Supreme Court said:
“The position of petitioners is, therefore, that in the case of a negligently sunk vessel, the Government may require the owner to mark it; it may expect him to remove it or forfeit his interest in the vessel; and if the Government proceeds to remove the vessel, it possesses the right to sell vessel and cargo and retain the proceeds of these sales. Moreover, the Government may proceed criminally, under § 16 [33 U.S.C. § 411], against those responsible for the negligent sinking. But, petitioners argue, the Government may do no more. Under their view, the very detail of the Rivers and Harbors Act negates the possibility that Congress intended the Government to be able to recover removal expenses exceeding the value of the vessel and its cargo. Petitioners would apply the same analysis to a government action for declaratory or injunctive relief. Indeed, petitioners believe that authorization of the injunction remedy in another, analogous, section of the Act indicates congressional intent to withhold declaratory or injunctive relief as a means of enforcing § 15 [33 U.S.C. § 409],
“We do not agree. Petitioners’ interpretation of the Rivers and Harbors Act of 1899 would ascribe to Congress an intent at variance with the purpose of that statute. Petitioners’ proposal is, moreover, in disharmony with our own prior construction of the Act, with our decisions on analogous issues of statutory construction, and with a major maritime statute of the United States. If there were no other reasonable interpretation of the statute, or if petitioners could adduce some persuasive indication that their interpretation accords with the congressional intent, we might be more disposed to accept that interpretation. But our reading of the Act does not lead us to the conclusion that Congress must have intended the statutory remedies and procedures to be exclusive of all others. There is no indication anywhere else — in the legislative history of the Act, in the predecessor statutes, or in nonstatutory law — that Congress might have intended that a party who negligently sinks a vessel should be shielded from personal responsibility. We therefore hold that the remedies and procedures specified by the Act for the enforcement of § 15 were not intended to be exclusive. Applying the principles of our decision in Republic Steel, [United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903] we conclude that other remedies, including those here sought, are available to the Government.
“II.
“Article I, § 8, of the Constitution grants to Congress the power to regulate commerce. For the exercise of this power, the navigable waters of the United States are to be deemed the ‘public property of the nation, and subject to all the requisite legislation by Congress.’ Gilman v. Philadelphia, 3 Wall. 713, 725 [18 L.Ed. 96] (1866). The Federal Government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. Cf. In re Debs, 158 U. S. 564, 586 [15 S.Ct. 900, 907, 39 L.Ed. 1092] (1895). The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, Sanitary District v. United States, 266 U. S. 405 [45 S.Ct. 176, 69 L.Ed. 352] (1925), was obviously intended to prevent obstructions in the Nation’s waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. See, e. g., Sanitary District v. United States, supra; United States v. Republic Steel Corp., 362 U.S. 482 [80 S.Ct. 884, 4 L.Ed.2d 903] (1960). And we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself. United States v. Republic Steel Corp., supra, at 492 [80 S.Ct. [884] at 890.]
“Our decisions have established, too, the general rule that the United States may sue to protect its interests. Cotton v. United States, 11 How. 229 [13 L.Ed. 675] (1851); United States v. San Jacinto Tin Co., 125 U.S. 273 [8 S.Ct. 850, 31 L.Ed. 747] (1888); Sanitary District v. United States, supra. This rule is not necessarily inapplicable when the particular governmental interest sought to be protected is expressed in a statute carrying criminal penalties for its violation. United States v. Republic Steel Corp., supra. Our decisions in cases involving civil actions of private parties based on the violation of a penal statute so indicate. Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33 [36 S.Ct. 482, 60 L.Ed. 874] (1916); J. I. Case Co. v. Borak, 377 U.S. 426 [84 S.Ct. 1555, 12 L.Ed.2d 423] (1964). In those cases we concluded that criminal liability was inadequate to ensure the full effectiveness of the statute which Congress had intended. Because the interest of the plaintiff in those cases fell within the class that the statute was intended to protect, and because the harm that had occurred was of the type that the statute was intended to forestall, we held that civil actions were proper. That conclusion was in accordance with a general rule of the law of torts. See Restatement (Second) of Torts § 286. We see no reason to distinguish the Government, and to deprive the United States of the benefit of that rule.
“The inadequacy of the criminal penalties explicitly provided by § 16 of the Rivers.and Harbors Act is beyond dispute. That section contains only meager monetary penalties. In many cases, as here, the combination of these fines and the Government’s in rem rights would not serve to reimburse the United States for removal expenses. It is true that § 16 also provides for prison terms, but this punishment is hardly a satisfactory remedy for the pecuniary injury which the negligent shipowner may inflict upon the sovereign. Cf. United States v. Acme Process Equipment Co., 385 U.S. 138 [87 S.Ct. 350, 17 L.Ed.2d 249] (1966).
“It was a similar process of reasoning that underlay our decision in United States v. Republic Steel Corp., 362 U.S. 482 [80 S.Ct. 884, 4 L.Ed.2d 903] (1960). That case concerned the deposit of industrial solids which, we believed, created an ‘obstruction. to the navigable capacity’ of a waterway of the United States, within the meaning of § 10 of the Act [33 U.S.C. § 403]. We decided that the Government might seek injunctive relief to compel removal of such an obstruction, even though such relief was nowhere specifically authorized by the Act. We concluded that the authorization of injunctive relief in § 12 [33 U.S.C. § 406], which is applicable only to a limited category of § 10 obstructions (structures), should not be read to exclude injunctions to compel removal of other types of § 10 obstructions. In referring to the Act, we noted that ‘Congress has legislated and made its purpose clear; it has provided enough federal law in § 10 from which appropriate remedies may be fashioned even though they rest on inferences. Otherwise we impute to Congress a futility inconsistent with the great design of this legislation.’ 362 U.S., at 492 [80 S.Ct. [884] at 890].
“Although we do not approach the instant cases in the context of § 10, we believe the principles of Republic Steel apply, by analogy, to the issues now before us. The Government may, in our view, seek an order that a negligent party is responsible for rectifying the wrong done to maritime commerce by a § 15 violation. Denial of such a remedy to the United States would permit the result, extraordinary in our jurisprudence, of a wrongdoer shifting responsibility for the consequences of his negligence onto his victim. It might in some cases permit the negligent party to benefit from commission of a criminal act. We do not believe that Congress intended to withhold from the Government a remedy that ensures the full effectiveness of the Act. We think we correctly divine the congressional intent in inferring the availability of that remedy from the prohibition of § 15.
“It is but a small step from declaratory relief to a civil action for the Government’s expenses incurred in removing a negligently sunk vessel. See United States v. Perma Paving Co., 332 F.2d 754 (C.A. 2d Cir. 1964). Having properly chosen to remove such a vessel, the United States should not lose the right to place responsibility for removal upon those who negligently sank the vessel. See Restatement of Restitution § 115; United States v. Moran Towing & Transportation Co., 374 F.2d 656, 667 (C.A. 4th Cir. 1967). No issue regarding the propriety of the Government’s removal of Wyandotte’s barge is now raised. Indeed, the facts surrounding that sinking constitute a classic case in which rapid removal by someone was essential. Wyandotte was unwilling to effectuate removal itself. It would be surprising if Congress intended that, in such a situation, the Government’s commendable performance of Wyandotte’s duty must be at Government expense. Indeed, in any case in which the Act provides a right of removal in the United States, the exercise of that right should not relieve negligent parties of the responsibility for removal. Otherwise, the Government would be subject to a financial penalty for the correct performance of its duty to prevent impediments in inland waterways. See United States v. Perma Paving Co., supra, at 758.
“We note, moreover, that under the Limitation of Shipowners’ Liability Act of 1851, 9 Stat. 635, as amended, 46 U.S.C. § 181 et seq., the liability of a shipowner ‘for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture’ may be limited to ‘the interest of such owner in such vessel, and her freight then pending’; but this limitation is available only if the act or damage occurred ‘without the privity or knowledge of such owner.’ 46 U.S.C. § 183. ‘For his own fault, neglect and contracts the owner remains liable.’ American Car & Foundry Co. v. Brassert, 289 U.S. 261, 264 [53 S.Ct. 618, 619, 77 L.Ed. 1162] (1933). The reading that petitioners would place on the Rivers and Harbors Act of 1899 would create an additional right of limitation, applicable in the special case of a sinking even though the owner is himself negligent. Yet Congress gave no indication, in passing the Rivers and Harbors Act, that it intended to alter or qualify the 1851 Act. In the
congressional failure to connect these two statutes, we find at least some evidence that petitioners’ discovery of a limitation of liability in the Rivers and Harbors Act is unwarranted.
“III.
“Petitioners contend that, despite our pri- or decisions and the silence of the Rivers and Harbors Act on this point, that statute authorizes them simply to abandon their negligently sunk vessels, without further responsibility for those vessels. We find in the Act no support for such an absolute right of abandonment. The provision upon which petitioners place most reliance, the final clause of § 15, creates a ‘duty of the owner of [a] sunken craft to commence the immediate removal of the same, and prosecute such removal diligently.’ Because ‘failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections [19 and 20],’ petitioners contend that such failure in no case has other consequences. But the duty imposed by and the remedy provided in the final clause of § 15 and §§ 19 and 20 [33 U.S.C. §§ 414 and 415] are not prescribed only for owners of negligently sunk vessels. Those provisions apply ‘whenever a vessel. is wrecked and sunk in a navigable channel, accidentally or otherwise Unlike a negligent sinking, a non-negligent sinking is not declared by the Act to be unlawful. It seems highly unlikely that Congress, having specified that only a negligent or intentional sinking is a crime, would then employ such indirect language to grant the culpable owner a personal civil immunity from the consequences. of that crime.
“We believe the sections noted by petitioners are intended to protect the United States against liability for removing a sunken vessel if it chooses to do so. See Zubik v. United States, 190 F.2d 278 (C.A. 3d Cir. 1951); Gulf Coast Transp. Co. v. Ruddock-Orleans Cypress Co., 17 F.2d 858 (D.C.E.D.La.1927). Section 19 speaks explicitly of the discretion of the Secretary of the Army to break up, remove, sell, or otherwise dispose of a sunken vessel that has obstructed a waterway ‘without liability for any damage to the owners of the same.’ These sections do not negate the rights of the United States to obtain declaratory relief or to recover removal expenses. It is true that a proviso to § 19 states ‘[t]hat any money received from the sale of any such wreck... shall be covered into the Treasury of the United States.’ But that proviso does not indicate that the United States, having chosen to remove a sunken vessel, shall receive no other monies. At most, the proviso establishes the proposition that, if the United States chooses to sell a wreck, the owner of the vessel has no right to any monies received. Section 20, the emergency section, closely parallels § 19. It adds nothing to petitioners’ argument.
“Petitioners also claim that a substantial body of non-statutory law establishes the rule that a shipowner who has negligently sunk a vessel may abandon it and be insulated from all but in rem liability. They argue that Congress must have intended to codify this rule in the Rivers and Harbors Act. We do not accept petitioners’ claim. Although several modern courts have assumed the existence of such a common-law rule, see, e. g., United States v. Moran Towing & Transportation Co., 374 F.2d 656, 667 (C.A. 4th Cir. 1967); United States v. Bethlehem Steel Corp., 319 F.2d 512, 518-519 (C.A. 9th Cir. 1963), the rule evaporates upon close analysis. We do not believe Congress intended the Rivers and Harbors Act to embody this illusory nonstatutory law.”
Wyandotte Transportation Co. v. United States, supra at 199-209, 88 S.Ct. at 384 (Footnotes 11-16, 19-22 omitted).
While we note that in footnote 17, Wyandotte Transportation Co. v. United States, supra at 205-06, 88 S.Ct. 379, the Wyandotte opinion explicitly reserved decision on the effect of the Limitation Act (Limitation of Shipowners’ Liability Act of 1851, 46 U.S.C. § 181 et seq.) courts and commentators have read it as implying that in person-am liability could not be so limited in a Wreck Act case. See In re University of Texas, C.A. 74-H-1438 (S.D.Tex. Apr. 2, 1975); In re Pentzien, Inc., 1974 A.M.C. 1201 (D.Neb.1974); In re Scranton Industries, Inc., 358 F.Supp. 7 (S.D.N.Y.1972); In re Pacific Far East Line, Inc., 314 F.Supp. 1339 (N.D.Cal.1970) aff’d on separate issue, 472 F.2d 1382 (9th Cir. 1973). See also In re Chinese Maritime Trust, Ltd., 361 F.Supp. 1175 (S.D.N.Y.1972), aff’d 478 F.2d 1357 (2d Cir. 1973), cert. denied, 414 U.S. 1143, 94 S.Ct. 894, 39 L.Ed.2d 98 (1974).
Benedict on Admiralty quotes the Wreck Act (33 U.S.C. § 409; Act of March 3, 1899, ch. 425 § 15; 30 Stat. 1152), and summarizes the effect of the Wyandotte opinion as follows:
Wreck Act. The so-called Wreck Act provides:
“It shall not be lawful... to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels And whenever a vessel, raft or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States.
A vessel owner who fails to comply with this statute may not limit his liability for any resulting damage. As
soon as the owner decides to abandon his wreck, and succeeds in such abandonment, his further liability ceases. However, the shipowner will remain liable, without limitation, for removal expenses incurred by the United States where he is deemed to have “privity or knowledge” of the loss under § 183(a).
3 Benedict on Admiralty § 32, at 4-5,'4-6 (7th ed. I. Hall, A. Sann, K. Halajan 1975). (Footnote 7 omitted. Balance of fn. 8 omitted.)
Similarly concerning the pecuniary penalties provided by 33 U.S.C. § 412 for violations of 33 U.S.C. §§ 408, 409, Benedict says:
Criminal Statutes. Public policy forbids that a person liable to a fine or penalty under the criminal laws should be permitted to limit or reduce his liability by claiming the benefit of the shipowner’s limitation statutes.
3 Benedict on Admiralty, supra at 4-7.
As to the cause of action described in paragraph 3 of the District Judge’s order, more needs to be said.
The legal logic which applies to_ the Wreck Act claims and other pecuniary damage claims could apply just as well to the government’s claims stated in the third paragraph of the District Judge’s order. These claims relate to damages occasioned to the lock and dam and are asserted to represent the sum of $2,200,000. They are brought under, the Rivers and Harbors Act, 33 U.SiC. §§ 408, 412 (1970):
It shall not be lawful- for any person or persons to take possession of or make use of for any purpose, or build upon, alter, deface, destroy, move, injure, obstruct by fastening vessels thereto or otherwise, or in any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, or any piece of plant, floating or otherwise; uséd in the construction of such work under the control of the United States, in whole or in part, for the preservation and improvement of any of its navigable waters or to prevent floods, or as boundary marks, tide gauges, surveying stations, buoys, or other established marks, nor remove for ballast or other purposes any stone or other material composing such works: Provided, That the Secretary of the Army may, on the recommendation of the Chief of Engineers, grant permission for the temporary occupation or use of any of the aforementioned public works when in his judgment such occupation or use will not be injurious to the public interest. 33 U.S.C. §-408 (1970).
This language appears to this court to be more positive than that employed in § 409 pertaining to negligently sunk vessels. Section 408 imposes strict liability, as compared to § 409’s requirement of negligence. Section 412 also provides that “any boat, vessel... or other craft used or employed in violating any of the provisions of sections 407, 408 and 409 of this title shall be liable for... the amount of the damages done by said boat, vessel. or other craft..
The sections we have referred to make unlawful injury to river improvements of the nature of the Cannelton Locks and Dam. Further, § 411, which follows, authorizes fines and imprisonment for anyone who knowingly violates these rules:
Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine -not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.
33 U.S.C. § 411 (1970).
All of this to the contrary notwithstanding, appellant Hines, Incorporated, the owner of the tugboat and barges involved in this accident, contends that it is entitled to limitation of liability under 46 U.S.C. § 183(a) (1970), which provides:
(a) The liability of the owner of any vessel, whether American or foreign, for any embezzlement, loss, or destruction by any person of any property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned or incurred, without the privity or knowledge of such owner or owners, shall not, except in the eases provided for in subsection (b) of this section, exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.
While the question posed in this regard is certainly not without difficulty, and while we find no precedent squarely on point, we believe the Congressional intent in adopting §§ 408 and 411 did not contemplate application to the United States of the Limitation of Liability Act of 1851. We reach this conclusion for the following reasons:
1. As a general rule of law when the purposes of two statutes appear to be in conflict with each other, and there is no statutory language which makes any cross-reference, and, as here, the legislative history is silent as to the possible conflict, it is generally assumed that the later statute constitutes an amendment of the earlier one. United States v. Ohio Valley Company, Inc., 510 F.2d 1184, 1189 (7th Cir. 1975); 2 A. Sutherland, Statutory Construction §§ 51.02, 51.05 (C. Sands 4th ed. 1973).
2. While as indicated above we recognize that the Supreme Court in the Wyandotte case specifically reserved judgment on the precise question which our instant case requires us to decide, we believe the Wyandotte decision nonetheless points toward the no limitation result outlined above. Two paragraphs which we have previously quoted, in our view, constitute a strong underpinning of logical reasoning for giving precedence to the purpose of the Rivers and Harbors Act over the Limitation of Liability Act:
Article I, § 8, of the Constitution grants to Congress the power to regulate commerce. For the exercise of this power, the navigable waters of the United States are to be deemed the “public property of the nation, and subject to all the requisite legislation by Congress.” Gilman v. Philadelphia, 3 Wall. 713, 725 [18 L.Ed. 96] (1866). The Federal Government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. Cf. In re Debs, 158 U.S. 564, 586 [15 S.Ct. 900, 907, 39 L.Ed. 1092] (1895). The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, Sanitary District v. United States, 266 U.S. 405 [45 S.Ct. 176, 69 L.Ed. 352] (1925), was obviously intended to prevent obstructions in the Nation’s waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. See, e. g., Sanitary District v. United States, supra; United States v. Republic Steel Corp., 362 U.S. 482 [80 S.Ct. 884, 4 L.Ed.2d 903] (1960). And we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself. United States v. Re public Steel Corp., supra, at 492 [80 S.Ct. [884] at 890].
Our decisions have established, too, the general rule that the United States may sue to protect its interests. Cotton v. United States, 11 How. 229 [13 L.Ed. 675] (1851); United States v. San Jacinto Tin Co., 125 U.S. 273 [8 S.Ct. 850, 31 L.Ed. 747] (1888); Sanitary District v. United States, supra. This rule is not necessarily inapplicable when the particular governmental interest sought to be protected is expressed in a statute carrying criminal penalties for its violation. United States v. Republic Steel Corp., supra. Our decisions in cases involving civil actions of private parties based on the violation of a penal statute so indicate. Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33 [36 S.Ct. 482, 60 L.Ed. 874] (1916); J. I. Case Co. v. Borak, 377 U.S. 426 [84 S.Ct. 1555, 12 L.Ed.2d 423] (1964). In those cases we concluded that criminal liability was inadequate to ensure the full effectiveness of the statute which Congress had intended. Because the interest of the plaintiffs in those cases fell within the class that the statute was intended to protect, and because the harm that had occurred was of the type that the statute was intended to forestall, we held that civil actions were proper. That conclusion was in accordance with a general rule of the law of torts. See Restatement (Second) of Torts § 286. We see no reason to distinguish the Government, and to deprive the United States of the benefit of that rule. Wyandotte Transportation Co. v. United States, supra 389 U.S. at 201-02, 88 S.Ct. at 385. (Footnotes omitted.)
It should be noted that § 286 of the Restatement (Second) of Torts, cited above by the Supreme Court, provides as follows:
The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
(a) to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results.
Both §§ 408 and 411, which are quoted above, clearly establish “the standard of conduct of a reasonable man” which the court may apply to defendant shipowner in this case. They likewise may be read as identifying the United States as “one whose interest is invaded,” and hence, warranting protection. In this case it is obvious that if the Limitation of Liability statute be so construed as to terminate in personam liability on the part of appellant Hines, there would be no possibility for the government to recover the bulk of its damages as set forth in its stated claims.
3. In Wyandotte the Supreme Court also gave weight to the fact that, as here, Congress had seen fit to enact criminal penalties. It said:
The inadequacy of the criminal penalties explicitly provided by § 16 of the Rivers and Harbors Act is beyond dispute. That section contains only meager monetary penalties. In many cases, as here, the combination of these fines and the Government’s in rem rights would not serve to reimburse the United States for removal expenses. It is true that § 16 also provides for prison terms, but this punishment is hardly a satisfactory remedy for the pecuniary injury which the negligent shipowner may inflict upon the sovereign. Cf. United States v. Acme Process Equipment Co., 385 U.S. 138 [87 S.Ct. 350, 17 L.Ed.2d 249] (1966).
It was a similar process of reasoning that underlay our decision in United States v. Republic Steel Corp., 362 U.S. 482 [80 S.Ct. 884, 4 L.Ed.2d 903] (1960). That case concerned the deposit of industrial solids which, we believed, created an “obstruction... to the navigable capacity” of a waterway of the United States, within the meaning of § 10 of the Act. We decided that the Government might seek injunctive relief to compel removal of such an obstruction, even though such relief was nowhere specifically authorized in the Act. We concluded that the authorization of injunctive relief in § 12,- which is applicable only to a limited category of § 10 obstructions (structures), should not be read to exclude injunctions to compel removal of other types of § 10 obstructions. In referring to the Act, we noted that “Congress has legislated and made its purpose clear; it has provided enough federal law in § 10 from which appropriate remedies may be fashioned even though they rest on inferences. Otherwise we impute to Congress á futility inconsistent with the great design of this legislation.” 362 U.S., at 492 [80 S.Ct. [884] at 890],
Although we do not approach
Question: What is the second most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_genstand
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Mortimer W. COAKLEY, Plaintiff, Appellant, v. POSTMASTER OF BOSTON, MASSACHUSETTS et al., Defendants, Appellees.
No. 6758.
United States Court of Appeals First Circuit.
March 16, 1967.
David D. Dretler, Boston, Mass., for appellant.
Gordon A. Martin, Jr., Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., Thomas P. O’Connor, Asst. U. S. Atty., were on brief, for appellees.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
Plaintiff appeals from the district court’s refusal to set aside an order of the defendant postmaster discharging him from his civil service position in the Boston Post Office. While holding this position plaintiff was also employed as a full-time fireman (boiler tender) by the Boston Housing Authority. The postmaster claims that Postal Regulation 712.811 prohibits plaintiff from working full-time for the Housing Authority while regularly employed by the Post Office and ordered him to give up one job or the other. He refused to relinquish either job and the postmaster discharged him.
Regulation 712.811 states “Regular (per annum) postal employees may hold state or local government part-time positions.” The postmaster asserts that this regulation by implication precludes regular postal employees from holding full-time positions with a state or local government. Plaintiff contends that this regulation does not apply to him because his job with the Boston Housing Authority is not a “state or local office” within the meaning of this regulation and that in any event the regulation itself is unreasonable.
We agree with the Postmaster that Regulation 712.811 precludes by implication regular postal employees from holding state or local government full-time positions. Any other interpretation would not make sense. We also agree that even though the title of the regulation uses the word “office” its applicability is not limited to top echelon officials. This regulation is much broader in scope and is intended to cover outside employment in general. Nor can we accept plaintiff’s argument that the Authority is not a state or local agency within the purview of the regulation. Cf. E. W. Wiggins Airways, Inc. v. Massachusetts Port Auth., 362 F.2d 52, 55 (1st Cir., cert, denied, 385 U.S. 947, 87 S.Ct. 320, 17 L.Ed.2d 226 (1966). That case held that a state Authority with similar statutory powers and duties was a public agency.
We now turn to the question of whether this regulation is reasonable. Rules and regulations made by government agencies in order to be valid must have a rational basis. Pan American Petroleum Corp. v. Federal Power Comm., 352 F.2d 241, 244 (10th Cir. 1965); N.L.R.B. v. Esquire, Inc., 222 F.2d 253, 256 (7th Cir. 1955). The difficulty in this case is that neither the record nor the regulation itself reveals its rationale. For this reason, we remanded the case to the district court for the limited purpose of receiving evidence as to its rationale. Regrettably, this hearing left the answer as much in the dark as it was before.
Clearly, under this regulation plaintiff, while holding his post office position, could work as a full-time boiler tender for a private employer but could only work as a part-time boiler tender if his employer were a state or municipal agency. We have not been given nor have we discovered any good reason for such a distinction. It can hardly be said that this distinction is based on job interference in view of the fact that there are other regulations under which the postmaster may forbid a postal employee from holding any outside position, public or private, full-time or part-time, which tends to interfere with his postal employment. Moreover, from a practical point of view there appears to be no intrinsic difference between public and private employment. Both demand a high degree of loyalty and require that the employee render efficient service, one no less than the other. Nor do we think that considerations based on sovereignty or comity between nation and state or the likelihood of conflicts of interest between the two, especially in times of emergency, enter into or constitute the rationale of this rule. For example, a full-time postal employee, working part-time for a state or municipal agency would be just as subject to conflicting demands on his time in case of an emergency as would an employee holding two full-time positions.
We are not persuaded by the government’s argument that the long history of prohibitions against dual office holding, both federal and state, and the fact that these prohibitions have been widely adopted and accepted in and of itself supports the reasonableness of this particular regulation. This is a non sequitur. We are not considering the reasonableness of a regulation forbidding all “moonlighting.” Cf. Mulry v. Driver, 366 F.2d 544 (9th Cir. 1966). The government further points out that until recently regular civil service employees were precluded from all outside public employment and the fact that this regulation does not go the full distance in relaxing this prohibition does not make it unreasonable. This argument falls short in that it sheds no light whatever on the rationale behind the distinction which the rule makes between apparently identical public and private employment.
In the absence of any good reason for such a distinction, it would seem that it can only be based on a per se objection to regular postal employees holding a second full-time public position as distinquished from a second full-time private one. In other words, the only reason for this distinction is that it is so because it is so. From this we can only conclude that the regulation in question is unreasonable on its face.
Judgment will be entered vacating the judgment of the district court and remanding the case for further proceedings not inconsistent with this opinion.
. Coakley v. United States Civil Service Commissioners, 252 F.Supp. 639 (D.Mass. 1966).
. There is no dispute that plaintiff, a full-time career mail handler, was a regular (per annum) postal employee at the time of his discharge.
. He also contends that this regulation violates the Fourteenth Amendment in that it discriminates against a group but we find no merit in this contention.
. For the most part, the defendant merely produced certain documents tracing the history and development of rules with reference to outside employment, none of which reveal the reasoning behind the distinction between full-time public and full-time private employment as made in the rule in question. Additionally, the defendants listed several state cases dealing with the various state prohibitions against dual office holding.
. Sections 712.82 and 744.451.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_fedlaw
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES v. SREDNIK.
Circuit Court of Appeals, Third Circuit.
April 27, 1927.
No. 3584.
1. Aliens ®=^711/2(8) — Certificate of naturalization held not illegally procured, authorizing cancellation proceeding, because of any mistake (Comp. St. § 4374).
Certificate of naturalization is not “illegally procured,” so as to authorize cancellation proceeding under Act June 29, 1906, § 15 (Comp. St. § 4374), there being no affirmative act of a sinister character on the part of the procurer, but, at most, a mere mistake in determining in favor of naturalization that applicant’s absence from country with intention to return did not interfere with compliance with statutory requirement of continuous residence.
2. Aliens <s=»711/2(8) — Government’s remedy for mere mistake in holding favoring naturalization is by appeal only.
In case of any mistake in holding, in favor of applicant for naturalization, that there was continuous residence, the government’s onl/ remedy was by appeal.
Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Proceeding by the United States against Thomas Srednik to cancel certificate of cancellation. Petition dismissed, and the United States appeals.
Affirmed.
George W. Coles, U. S. Atty., and Claude O. Lanciano, Asst. U. S. Atty., both of Philadelphia, Pa.
David Levinson, of Philadelphia, Pa., for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
BUFFINGTON, Circuit Judge.
This case concerns the naturalization of Thomas Srednik, and the present proceeding is one to cancel his naturalization certificate. The facts of the case are these :
On November 9, 1920, Srednik declared his intention to become a citizen of the United States, and on December 20,1922, in pursuance thereof, filed his petition in the District Court of the United States for the Eastern District of Pennsylvania. On May 5, 1924, he was admitted to citizenship and was given a certificate of naturalization No. 1,-955,210 by said court. On the record of that ease it appears that his citizenship was contested on the ground that he had not resided in the United States during the statutory period required. This matter was duly considered by the judge, and decided-in favor of the applicant in an opinion in which, after certain discussion, the court stated the conclusion reached was “that the applicant has continuously resided in the United States for a period of more than five years, and it is ordered that the prayer of his petition be granted and that he he admitted to citizenship upon taking the oath of allegiance.” The United States was represented at the hearing at the time of his naturalization, and no appeal was taken from the above decree.
After the expiration of the term, to wit, on August 25, 1924, a petition was filed by the United States attorney for the Eastern District of Pennsylvania, praying that the certificate of naturalization be canceled. An answer was filed thereto by the applicant, wherein he stated that “he is advised by counsel that the only point raised by the said petition is one involving legal construction as to the meaning of the Act of Congress of June 29, 1906 (34 Stat. 596), requiring a residence of five years next preceding the issuance of the certificate of naturalization. Defendant avers that this question was heard by this honorable court on April 2,1924, and the certificate of naturalization in question was issued, and inasmuch as no new facts have been alleged as a ground for cancellation he prays that the court dismiss the petition herein filed.”
The underlying primary question here involved is whether the remedy of cancellation here sought could be availed of under the fifteenth section of the act of June, 1906 (Comp. St. § 4374). Was the certificate, in the words of the said act, “illegally procured”? In the case of United States v. Richmond, 17 F.(2d) 28, we held that “to the words ‘procured,’ ‘illegally procured,’ coupled in this statute with fraud, as it is, must he attributed the purpose of Congress to use those words in their commonly understood meaning, as evidencing a positive, affirmative act on the part of the procurer, and one of a sinister character.” No such accusation is involved in the present case. The question before the court is one of fact and legal construction, namely, whether the absence of the applicant-from the country with the intention of returning was a compliance with the.statutory requirement of a continuous residence. That question the naturalization judge held in favor of the applicant under the facts of the ease. If he was mistaken, the remedy of the government, which was represented at the hearing, was by appeal.
Regarding the present case as an effort to review in this indirect way the opinion and decision of the court in the primary case, and. in accord with the-Richmond Case, we affirm the order of dismissal of the petition to cancel made in the present case.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
UNITED STATES of America, Appellant, v. Jasper Junior MOODY, Appellee.
No. 73-1313.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) July 2, 1973.
Resubmitted Under Third Circuit Rule 12(6) Sept. 12, 1973.
Decided Sept. 24, 1973.
Robert E. J. Curran, U. S. Atty., Richard J. Stout, Asst. U. S. Atty., Philadelphia, Pa., for appellant.
Edward H. Weis, Defender Assn, of Philadelphia, Philadelphia, Pa., for appellee.
Submitted Under Third Circuit Rule 12(6) on July 2, 1973.
Before GIBBONS and HUNTER, Circuit Judges.
Resubmitted Under Third Circuit Rule 12(6) on Sept. 12, 1973
Before GIBBONS, ROSENN and HUNTER, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge.
This is an appeal by the government in a criminal case under 18 U.S.C. § 3731 (Supp.1973) from an order of the district court granting a motion to suppress as evidence 54 one-gallon jugs of nontaxpaid whiskey found in the trunk of a car driven by the defendant. The government contends that the trial court erred in holding that the defendant has standing to challenge the constitutionality of the search in question, and in failing to find the warrantless search conducted in the case justifiable under the “automobile exception.” The defendant-appellee challenges the district court’s finding of probable cause for the search. While we agree with the district court’s holding on the standing and probable cause issues, we find that it erred in holding the search unreasonable absent a warrant, and reverse.
The relevant facts are not in dispute. On April 5, 1972, Special Agent Dutch of the Bureau of Alcohol, Tobacco and Firearms received a telephone call from an unidentified informant. The agent was told that a 1961 Chevrolet bearing Pennsylvania license tag 97934G was leaving the 2500 block of Dover Street, Philadelphia, Pennsylvania, between the hours of 6:30 and 7:30 p. m., to make deliveries of nontaxpaid whiskey, and that the vehicle was moving approximately thirty cases each week. Agent Dutch observed the car in the area specified on the evening of April 6 and again on April 13. On the first occasion the car left the area unnoticed. On the second occasion, it was observed leaving at about 6:30 p. m., but Agent Dutch’s attempt to follow it proved unsuccessful.
On April 19, the same informant telephoned Agent Dutch and told him that a delivery would be made by the 1961 Chevrolet to 1345 York Street at approximately 8:30 p. m. the following evening. Dutch and other agents set up a surveillance of that address on the 20th. At about 8:20 p. m., the 1961 Chevrolet arrived and a black male, identified as the defendant, was observed carrying a cardboard carton from the car into the 1345 York Street address. Two agents thereupon approached the parked car. As they did so, the defendant started to leave the York Street dwelling. Upon seeing the agents in the vicinity of the car, however, he returned to the dwelling. The agents then retired to a location where they could not be detected.
At approximately 10:00 p. m. the vehicle left the area and the agents, all of whom were white, followed. Their cars were unmarked and apparently nothing they wore clearly identified them as Federal Agents. As the defendant stopped at a traffic light, one of the agents pulled alongside his car and stared at him for several seconds. The defendant, seeing the agent, sped away and a chase ensued. After several turns, the defendant stopped his car in the traffic lane and successfully escaped on foot. Thereafter, one of the agents moved the vacant car to the side of the road, and using the keys left in the ignition, opened the car’s trunk and discovered the illegal whiskey.
The government’s first contention is that the defendant abandoned the car and its contents and, as a result, lacks standing to challenge the legality of the search and seizure. If abandonment did occur, there would be a loss of standing. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). However, abandonment depends largely on the possessor’s intent, United States v. Minker, 312 F.2d 632, 634 (3d Cir. 1962), and the party relying on it must establish the necessary state of mind by clear and unequivocal evidence. Friedman v. United States, 347 F.2d 697, 704 (8th Cir. 1965); see United States v. Robinson, 430 F.2d 1141, 1143 (6th Cir. 1970). We agree with the district court that the government has not met its burden on this issue.
The only facts from which one can infer intent indicate that the defendant, a black man, was aware that his vehicle was being followed by several unidentified white men and that earlier two men (again white) had approached his car. On these facts one could reasonably reach two conclusions: that he knew he was being followed by law enforcement agents and was seeking both to avoid arrest and abandon the incriminating evidence in the trunk of his car; or, that he believed he was being pursued by private citizens who intended to do him harm, and that he only left his car temporarily in order to escape this danger. Since only the former state of mind would constitute an abandonment, the evidence on the issue is ambiguous and cannot support a finding that the car and its contents were abandoned.
The next issue — whether the agents had probable cause to conduct the search — is raised by the defendant-appellee and not by the government. Ordinarily a defendant would not be able to take an appeal from a ruling on a Motion to Suppress since it lacks the finality necessary under 28 U.S.C. § 1291 (1970). See Bova v. United States, 460 F.2d 404 (2d Cir. 1972). However, since the government’s appeal challenges an “order of a district court suppressing or excluding evidence,” 18 U.S.C. § 3731 (Supp.1973), the defendant can raise issues with regard to findings and rulings relevant to that order under the umbrella of the government’s appeal. United States v. Halbert, 436 F.2d 1226 (9th Cir. 1970). As a result, the question of probable cause is properly before us.
Probable cause for a warrant-less car search exists, if there is, “a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction . . . .” Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 284, 69 L.Ed. 543 (1925). Clearly, the information provided by the anonymous informer could not meet this standard by itself. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We are satisfied, however, that when the “independently suspect activity” observed by the agent on the evening of April 20, is added to the anonymous tip and the evidence which corroborates it, there is sufficient evidence to support the district court’s finding of probable cause. United States v. McNally, 473 F.2d 934, 939-940 (3d Cir. 1973).
The first thing to note is that the events as they unfolded prior to the search bore out the informant in every respect. The make, year and license tag number of the car were all as indicated, and at the time and place specified for a delivery, the defendant was observed carrying a large cardboard carton from the car into the 1345 York Street home.
While this corroborative evidence may not be sufficient to bring the tip itself up to probable cause standards, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), it does give it added «’edibility when it is weighed in conjunction with the independent evidence of suspicious conduct observed by the agents conducting the search. See Id. at 418, 89 S.Ct. 584; United States v. McNally, supra, 473 F.2d at 939. When the defendant observed the agents in the vicinity of his car, he retreated into 1345 York Street and waited about one hour. Certainly from this, the agents could reasonably suspect that the ear contained contraband and that he was trying to avoid apprehension as its driver by delaying his departure until he was reasonably certain they had left. Further, when he sped away from the pursuing agents and then left the car (with the keys still in the ignition) in the middle of the street and fled on foot, the agents’ suspicions with regard to the use being made of the car were legitimately heightened and confirmed. United States v. Edwards, 441 F.2d 749, 752-754 (5th Cir. 1971) (alternative holding); Pegram v. United States, 267 F.2d 781 (6th Cir. 1959). While these actions might be viewed differently, interpreting them as indicia of criminal activity is entirely reasonable. When they are added to the tip and the events corroborating it, there is ample evidence to support the reasonableness of the search.
The government’s second contention, and the final issue raised, is that though no warrant was obtained for the search, it was justified under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which held that under certain circumstances the search of an automobile can be conducted without a warrant. The rationale for this rule lies in a car’s mobility which often makes a search possible only within a brief period of time. Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). As the Court explained in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970):
“. . . the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Where this is true, as in Carroll and the case before us now, if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.” Id. at 50-51, 90 S.Ct. at 1981.
In Carroll, the option of an immediate warrantless search was held valid. Carroll, supra, 267 U.S. at 153, 45 S.Ct. 280.
The defendant, however, argues that this case is more akin to Coolidge v. New Hampshire, supra, in which the Court distinguished Carroll in holding that a warrant was required for a car search. In reviewing the facts of Coolidge, two key differences from the typical car search situation are apparent. First, the evidence which provided probable cause did not arise unexpectedly immediately before the search. It was known well in advance, so that the officers had ample opportunity to secure a warrant before the evening of the search, and avoid any delay in the carrying it out. Second, there was no real danger that the car would be moved even if the search were delayed while a warrant was obtained. The defendant had been under investigation for several weeks and had made no attempt to leave the area. Further, on the evening of the search, the car was parked, unoccupied, in his driveway, and there was no practical danger that he or any confederate would gain access to it. Coolidge, supra, 403 U.S. at 460, 91 S.Ct. 2022. Under these circumstances, the rationale for a warrantless car search was absent.
The Coolidge holding, however, does not help the defendant since in this case, unlike Coolidge, the basic facts required to make a warrantless car search justifiable, are present. First, probable cause for the search only arose as a result of the defendant’s behavior immediately prior to the search. There was no basis, absent that behavior, to secure a search warrant. Second, there was the distinct possibility that the car would be moved and the evidence tampered with if the search was delayed while a warrant was sought since the defendant’s action in leaving the car unattended was ambiguous. While he might have been abandoning it and the contraband it contained, he might well have been leaving it temporarily, with the intent to retrieve it later.
Under these circumstances, the risk inherent in delaying the search of a car —removal of the car by the owner or a confederate — was clearly operative and unavoidable, and the search without a warrant justified. Since the failure to obtain a warrant was the basis of the district court’s holding, we conclude that it erred in granting the motion to suppress.
The judgment of the district court will be reversed.
. The charge against the defendant is violation of 26 U.S.C. §§ 5205(a)(2), 5604(a)(1) (1970).
. Though the identity of the informant was still unknown, Agent Dutch concluded that this was the same informant since that is how he identified himself, and since he followed the instructions given to the April 5th caller by asking to speak to Agent Dutch or Steiger. Appendix to brief for Appellant at 26-A.
. The government also challenges the defendant’s claim to “automatic standing” under Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In Jones the Court held that where “possession both convicts and confers standing, [there is no] necessity for a preliminary showing of an interest in the premises searched or the property seized.” Id. at 263, 80 S.Ct. at 732. The continuing validity of the rule has been specifically called into question by the Supreme Court dicta in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565 (1973).
We do not deal with the continuing validity of the “automatic standing” rule in the present case, however, for several reasons. First, the Brown decision was issued after the district court completed the proceedings in issue here. At the time of the hearing on the ' motion to suppress, Jones was clear authority recently reaffirmed in this Circuit. See United States v. West, 453 F.2d 1351 (3d Cir. 1972). The defendant’s sole reliance on it for standing was reasonable. Further, it is likely the defendant could have asserted an alternate basis for standing had that appeared necessary, either by alleging a possessory interest in the contraband seized or in the vehicle searched (with regard to the vehicle, each of the government’s witnesses indicated that the defendant was driving the car). Therefore, even if we were to find that the automatic standing rule was no longer valid, it would appear unjust to deny the defendant an opportunity to amend his original motion, and given that opportunity, it is likely he would establish his standing in any case.
Second, the issue was not raised by the government until this appeal, and as a result, the district court has had no opportunity to examine the question. It goes without saying that the proper function of the court is to review the work of the district court, and not to make initial determinations on complicated issues.
Finally, since we hold for the government on the merits, a decision on this question would have no practical effect on the outcome of this case.
. This is in conformity with decisions of the Supreme Court in interpreting statutory grants of analogous appeal rights to the government under the predecessor to the present § 3731. See, e. g., United States v. Borden, 308 U.S. 188, 205-207, 60 S.Ct. 182, 84 L.Ed. 181 (1939), distinguishing United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936).
. While his retreat might also have been prompted by the belief that the men in the vicinity of his car were private citizens seeking to do him harm, this is less plausible since he made no attempt to call the police or send one of the occupants of the 1345 York Street house for help. In any case, the agents needed only a reasonable belief of criminal activity, not conclusive proof, to justify the search.
. In fact, a warrant (which proved to be procedurally invalid) was obtained prior to the search. 403 U.S. at 449-453, 91 S.Ct. 2022.
. Prior to the evening of April 20, the only-information the agents possessed was the result of an anonymous tip. Since they had no information as to the informant’s reliability or as to factual basis for his accusations, and since they had almost no evidence corroborative of the tip, probable cause for a search did not exist. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_appel2_7_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed 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").
John V. HOLMES et al., Appellants, v. William Lucius CARY et al., Appellees.
No. 22098.
United States Court of Appeals Fifth Circuit.
Jan. 19, 1966.
John V. Holmes, for appellants.
Paul J. Kemp, Walter P. North, Attys., S. E. C., Washington, D. C., Philip A. Loomis, Jr., Gen. Counsel, Martin D. Newman, Atty., Securities and Exchange Commission, Washington, D. C., for ap-pellees.
Before BROWN and COLEMAN, Circuit Judges, and GARZA, District Judge.
PER CURIAM:
This case, arising out of a much litigated dispute between Plaintiffs and the SEC, represents an attempt to require the SEC to file, make public, and treat in a regular fashion a paper which purports to be a registration statement. In view of the fact that this paper clearly fails to meet the requirements of the Securities Act of 1933 and the SEC’s rules and regulations, we agree fully with the District Court that it does not represent a bona fide attempt to qualify to sell securities to the investing public and hence is not a registration statement at all. Summary judgment for the Defendants was correct.
Affirmed.
. Holmes v. United States, 5 Cir., 1965, 353 F.2d 785 [Dec. 13, 1965] ; Holmes v. Eddy, 4 Cir., 1965, 341 F.2d 477; SEC v. Bond & Share Corp., W.D.Okl., 1963, 229 F.Supp. 88 (appeal pending to 10th Circuit).
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_usc1sect
|
207
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
CENTRAL HANOVER BANK & TRUST CO. v. PHILADELPHIA & READING COAL & IRON CO. et al.
No. 6646.
Circuit Court of Appeals, Third Circuit.
Oct. 14, 1938.
Thomas W. Reath, of Philadelphia, Pa., Larkin, Rathbone & Perry, of New York City, and Dechert, Smith & Clark, of Philadelphia, Pa. (Frank H. Heiss, of New York City, and Geoffrey S. Smith, of Philadelphia, Pa., of counsel), for appellant.
Knox Henderson, Allen Hunter White, and Frederic L. Ballard, all of Philadelphia, Pa. (Ballard, Spahr, Andrews & Ingersoll, of Philadelphia, Pa., of counsel), for appellees Schofield Andrews, Reid Kennedy, George A. Barnewall, William F. Walsh, and Cornelius A. Sullivan, as and constituting Protective Committee for Holders of Philadelphia & Reading Coal & Iron Co. Twenty-Year Convertible 6% Debenture Bonds.
E. R. von Starcle and W. James Macintosh, of Philadelphia, Pa. (Penrose Hertzler, of Pottsville, Pa., and Morgan, Lewis & Bockius, of Philadelphia, Pa., of counsel) for appellee Philadelphia & Reading Coal & Iron Co.
Percival E. Jackson, of New York City, and David Bortin, of Philadelphia, Pa., for intervener-appellee.
Before DAVIS, MARIS, and BUFFINGTON, Circuit Judges.
MARIS, Circuit Judge.
On February 26, 1937, the Philadelphia and Reading Coal and Iron Company (hereinafter called the Debtor) filed in the District Court for the Eastern District of Pennsylvania its petition for reorganization under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. On the same date its petition was approved by the court which by a decree then entered continued the Debtor in possession of its properties and enjoined the enforcement of any liens or claims against them.
On March 22, 1937, the appellant, Central Hanover Bank and Trust Company, which is the trustee under a mortgage covering substantially all the properties of the Debtor given to secure an issue of Refunding Mortgage 5% Sinking Fund Gold Bonds outstanding in the amount of $24,411,822.66, filed a petition in the reorganization proceeding praying that it be permitted to intervene generally in the proceeding and that the Debtor be directed to sequester and impound for the benefit of the holders of the Refunding Mortgage Bonds all the income arising out of the mortgaged property after February 26, 1937. The petition contained the allegation that the approval of the Debtor’s petition for reorganization and its continuance in possession of its properties under the decree of February 26, 1937, was the equivalent of the appointment of a receiver and, therefore, constituted an event of default under the mortgage which entitled the petitioner to the relief prayed for. To this petition an answer was filed by a committee of holders of debentures of the Debtor and the petition and answer were referred by the District Court to a special master who, after hearing, recommended that the petition be dismissed.
Thereafter on September 2, 1937, the appellant filed a second petition praying for similar relief based upon the allegation that a second event of default had occurred under the mortgage in that the Debtor had failed to pay the installment of interest due on the Refunding Mortgage Bonds on July 1, 1937, and that the default had continued for a period of sixty days.
Exceptions were filed by the appellant to the report of the special master upon the first petition and these exceptions together with the second petition were heard by the District Court which subsequently dismissed the exceptions to the master’s report and entered orders denying both petitions. From these orders the present appeal was taken to this court.
The first question raised upon the appeal is whether the court below erred in refusing appellant’s petitions for leave to intervene generally as a party in the reorganization proceeding. This brings us to a consideration of some of the circumstances under which intervention may be allowed in reorganization proceedings under the Bankruptcy Act. Subdivision (c) of Section 77B,11 U.S.C.A. § 207 (c), contains the following provisions: “The debtor shall have the right to be heard on all questions. Any creditor or stockholder shall have the right to be heard on the question of the permanent appointment of any trustee or trustees, and- on the proposed confirmation of any reorganization plan, and upon filing a petition for'leave to intervene, on such other questions arising in the proceeding as the judge shall determine.” By the amending Chandler Act of June 22, 1938, Section 77B of the Bankruptcy Act was superseded by Chapter 10 on September 22, 1938, 11 U.S.C.A. § 501 et seq. Chapter 10 applies not only to all reorganization proceedings commenced after its adoption but also to those previously commenced under Section 77B to the extent that its provisions are deemed by the court to be practicably applicable. It contains in Sections 206 and 207, 11 U.S.C.A. §§ 606, 607 the following provisions: “The debtor, the indenture trustees, and any creditor or stockholder of the debtor shall have the right to be heard on all matters arising in a proceeding under this- chapter. * * *. The judge may for cause shown permit a party in interest to intervene generally or with respect to any specified matter. * * * ” Chapter 10 contains in Section 213, 11 U.S.C.A. § 613, the further provision that “* * * ail agent, indenture trustee or committee, purporting to represent creditors or stockholders, shall not be heard or allowed to intervene in a proceeding under this chapter -until such person or persons shall have satisfied the court that they have complied with all applicable laws regulating the activities and personnel of such persons.”
It will thus be seen that both Section 77B and Chapter 10 contemplate the allowance of intervention by creditors and stockholders in the discretion of the court. Chapter 10 makes clear what was implied by Section 77B, namely, that representatives of creditors and stockholders, such as indenture trustees and committees, may also be permitted to intervene in their behalf in the court’s discretion. In Steere v. Baldwin Locomotive Works, 3 Cir., 98 F.2d 889, we recently had occasion to point out the manner in which that discretion should be exercised so as to secure the assistance in reorganization proceedings of properly qualified committees representing all classes of creditors and stockholders whose numbers are large but whose individual interests are relatively small. What we said in that case which arose under Section 77B, 11 U.S.C.A. § 207, is, we think, equally applicable to proceedings carried on under Chapter 10, 11 U.S.C.A. § 501 et seq., although in the latter proceedings the District Court will have to take into consideration the additional requirements imposed by Chapter 10 particularly those contained in Sections 211 and 213, 11 U.S.C.A. §§ 611, 613.
We think it clear that creditors and stockholders whose individual interests are relatively small and who are adequately represented by a committee should not be permitted to intervene individually. Individual creditors or stockholders who are "not represented otherwise and whose interests are relatively large and likely to be affected to a substantial degree by such intermediate steps as may be taken during the course of the proceeding are in a different situation, however. They should, we think, ordinarily be granted leave to intervene as parties entitled to participate generally in the proceeding if they request it. The same rule should be followed in the case of indenture trustees, such as the appellant in this case, who, as the legal representatives of bondholders, have a definite and usually very substantial interest in reorganization proceedings which fully justifies their intervention as parties. The interest of an indenture trustee, as we have seen, is expressly recognized by Chapter 10. Its interest in the proceeding is quite distinct from that of a committee representing the bondholders for whom it is trustee, however, and the intervention of a committee should therefore be permitted in a proper case without regard to the fact that the trustee may also have intervened.
In the case before us the appellant is the trustee under a mortgage which is a lien upon substantially all the Debtor’s property and secures an issue of over $24,000,000.00 of bonds. As such it is the legal representative of a very large number of creditors whose individual interests are relatively very small but whose aggregate claim against the Debtor’s estate is very large. We think that it should have been permitted to intervene generally as a party in the reorganization proceeding and that the court below abused its discretion in refusing it leave to do so.
The appellant also complains of the refusal of the court below to direct that the net income derived from the mortgaged property be sequestered and impounded by the Debtor for the benefit of the holders of the Refunding Mortgage Bonds. It contends that it was entitled to the decree sought in order to protect the bondholders’ title to the income. The Debtor and the representatives of unsecured creditors strongly urge that such an order would defeat the purposes of Section 77B, 11 U.S.C.A. § 207, and render a reorganization of the Debtor under that section impossible.
The underlying purpose of Section 77B was to maintain the status quo of the debtor pending a reasonable opportunity to reorganize its financial structure with the consent of the requisite majorities of creditors and stockholders. The section clearly contemplated that the court would stay adverse action - by secured creditors until a reasonable opportunity had been afforded the debtor to submit a plan of reorganization for approval or rejection. Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & P. Ry. Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110; In re Prudence Bonds Corporation, 2 Cir., 75 F.2d 262. The sequestration of substantially all the Debtor’s current income would undoubtedly so impede its operation as a going concern as to render well nigh impossible its reorganization as such. Consequently it was entirely proper for the court below to refuse to order the physical sequestration and impounding by the Debtor for the benefit of the bondholders of the income of the mortgaged property. It is clear that the court in so doing did not deprive the appellant or the bondholders it represents of their property without due process of law in violation of the fifth amendment. Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & P. Ry. Co., supra; Wright v. Vinton Branch, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736, 112 A.L.R. 1455.
It was suggested at the argument, however, that all the appellant really seeks is a decree fixing its right to the net income of the mortgaged property received during the pendency of the reorganization proceeding and remaining in the hands of the Debtor in case reorganization fails and liquidation is ordered. For this purpose, however, an adjudication by the court below was unnecessary.
It is settled in this circuit that in a bankruptcy proceeding a mortgage creditor is entitled without prior demand to the net income of the mortgaged property from the date of adjudication if it is needed to pay the amount due him. In re Torchia, 3 Cir., 188 F. 207; Bindseil v. Liberty Trust Co., 3 Cir., 248 F. 112; Associated Co. v. Greenhut, 3 Cir., 66 F.2d 428. This is because the bankruptcy proceeding has taken from the Debtor the possession of his property and in so doing has deprived the mortgage creditor of his ordinary remedy to reach the property mortgaged and its income. It, therefore, follows upon equitable principles, as Judge Woolley pointed out in Bindseil v. Liberty Trust Co., supra, page 114, “that after insolvency has taken the debtor’s property out of his hands, its income or product belongs to the lien creditor, who has thus become its virtual owner; and that such income or product issuing from mortgaged property, should not be diverted from the mortgage creditor who has a lien to general creditors who have no lien.” The right of the mortgage creditor, however, attaches only to the net income remaining after payment of proper administration expenses, operating expenses and taxes, as allowed by the Bankruptcy Court. Petersburg Sav. & Ins. Co. v. Dellatorre, 5 Cir., 70 F. 643; Florida Nat. Bank of Jacksonville v. United States, 5 Cir., 87 F.2d 896.
An analogous situation arises in a reorganization proceeding under Section 77B, 11 U.S.C.A. § 207 where after the approval of the debtor’s petition its property comes into the custody of the law and its mortgage creditors are enjoined from pursuing their normal remedies. This is the case even though the debtor is continued by the court in possession of its property since under these circumstances, by the express terms of. subdivision (c) of Section 77B, 11 U.S.C.A. § 207 (c), as well as of Section 188 of Chapter 10, 11 U.S.C.A. § 588, it has the powers and duties of a trustee and is subject at all times to the control of the court. It follows upon the equitable principles to which we have referred that a mortgage creditor in a reorganization proceeding becomes entitled to the net income of the mortgaged property, to thé extent required to satisfy his claim, without the necessity of any demand on his part or adjudication by the court. Consequently in the present case the appellant as trustee became entitled to the net income of the mortgaged property from February 26, 1937, the date the court approved the Debtor’s petition, which was also the date the Debtor’s property came into the custody of the law and likewise the date which, under the provisions of subdivision (k) of Section 77B, 11 U.S.C.A. § 207(k) and Sections 102 and 200 of Chapter 10, 11 U.S.C.A. §§ 502, 600 corresponded to the date of adjudication in an ordinary bankruptcy proceeding.
The orders of the court below are reversed insofar as they deny the appellant leave to intervene. In all other respects they are affirmed.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11? Answer with a number.
Answer:
|
songer_crmproc2
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if less than two federal rules of criminal procedure are cited. For ties, code the first rule cited.
In re TENNESSEE PUB. CO. TENNESSEE PUB. CO. v. AMERICAN NAT. BANK et al. CARPENTER v. TENNESSEE PUB. CO.
Nos. 7266, 7267.
Circuit Court of Appeals, Sixth Circuit.
Feb. 13, 1936.
ALLEN, Circuit Judge, dissenting in part.
Lewis S. Pope and Albert Roberts, both of Nashville, Tenn. (Lewis S. Pope, White & Howard, and Roberts & Roberts, all of Nashville, Tenn., on the brief), for Tennessee Pub. Co.
Cecil Sims, of Nashville, Tenn. (Bass, Berry & Sims, of Nashville, Tenn., on the brief), for American Nat. Bank and Paul M. Davis.
H. G. Fowler, of Knoxville, Tenn. (J. A. Fowler and S. F. Fowler, both of Knoxville, Tenn., on the brief), for receiver C. O. Carpenter.
Charles C. Trabue and Thomas H. Malone, both of Nashville, Tenn., for M. & O. Paper Co.
Pitts, McConnico, Hatcher & Waller, of Nashville, Tenn., for Ingram and Bradford.
W. E. Norvell, of Nashville, Tenn., for American Union Bank and others.
Before MOORMAN, STMONS, and ALLEN, Circuit Judges.
SIMONS, Circuit Judge.
The main appeal is from a final order and decree dismissing the debtor’s petition and plan for corporate reorganization under the provisions of section 7713 of the Bankruptcy Act, as amended (11 U.S.C.A. § 207). The appeal was allowed by the District Judge, but the debtor later, conceiving the appeal to be governed by section 24b, as amended (11 U.S.C.A. § 47 (b), filed a petition with this court for leave. It appearing that the petition was timely, we treat the appeal as having been allowed, and an order to that effect may be entered. The cross-appeal is from a final order incorporated in the decree overruling a motion to dismiss the debtor’s petition on the ground that it was not filed in good faith as provided by the statute. The cross-appeal was likewise allowed by the District Judge, but no petition, timely or otherwise, for its allowance here was presented. A motion to dismiss the cross-appeal is before us. Regarding the main appeal as properly allowed under section 24b, Vitagraph, Inc., v. St. Louis Properties Corp., 77 F.(2d) 590 (C.C.A.8); Credit Alliance Corp. v. Atlantic, Pacific & Gulf Refining Co., 77 F.(2d) 595 (C.C.A.8); Campbell v. Alleghany Corp., 75 F.(2d) 947, 955 (C.C.A.4); Humber v. Bankers’ Trust Co., 70 F.(2d) 265 (C.C.A.6), and regarding it also, as will later appear, as raising, the question generally of the validity of the decree, whether based upon valid or invalid grounds, we give no consideration to the cross-appeal, and it may be dismissed.
The Tennessee Publishing Company, designated as the debtor, according to the statute, had for many years published both a morning and an evening newspaper in Nashville, Tenn. On March 3, 1933, by general creditors’ bill, its affairs were placed in charge of a receiver appointed by the District Court. The proceedings were filed by appellee Carpenter, receiver ofoa closed bank, which held $28,-000 of the debtor’s bonds, which were part of an issue of $750,000 dated November 1, 1928. The rate of interest borne by the bonds and their maturity dates nowhere appear, but they were secured by a deed of trust executed by the debt- or, which provided that upon default in the payment of interest or principal the security might be foreclosed and sold at public auction, either through proceedings in equity or by advertisement.
The equity bill averred operating losses sustained by the debtor during the years 1929 to 1932. Losses continued during the receivership, but at a reduced rate. The usual reference to a master for consideration of claims followed, with the result that claims were filed in the total amount - of approximately $1,500,000. A final hearing was set for June 6, 1935, and it was then the reasonable expectation of all parties m interest that a sale of assets would be ordered and the receivership terminated.
On June 5, 1935, Carfnack, son of a former editor of the debtor’s papers, acquired from the Leas, then its owners, all of the debtor’s common stock. He immediately had himself elected president, and instituted the debtor proceedings here involved under section 77B. His first reorganization plan being objected to by the various classes of creditors, a second and a third plan of reorganization with modifications thereof followed. All were vigorously opposed by each interest concerned save for approval by a relatively small number of unsecured creditors. Not any of the bondholders gave assent to the plans proposed, and about 50 per cent, of the unsecured creditors have affirmatively opposed all reorganization plans.
Section 77B provides for a scheme of corporate reorganization similar in many of its aspects to that provided for the reorganization of railroads engaged in interstate commerce by section 77 (11 U.S.C.A. § .205), discussed and held constitutionally valid in general scope and application in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pacific Railway Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110. It provides that .upon the filing of a petition for reorganization the court shall enter an order approving its filing if satisfied that the petition complies with the section and has been filed in good faith. The plan of reorganization shall- include provisions modifying or altering the rights of creditors generally, or any class of them, either through the issuance of new securities or otherwise. Subsection (e), of section 77B, 11 U.S.C.A. § 207 (c), in so far as pertinent, is as follows:
“A plan of reorganization shall not be confirmed until it has been accepted in writing, * * * and such acceptance shall have been filed in the proceeding by or on behalf of creditors holding two thirds in amount of the claims of each class whose claims have been allowed and would be affected by the plan: * * * Provided, however, That such acceptance shall not be requisite to the confirmation of the plan by any creditor or class of creditors (a) whose claims are not affected by the plan, or (b) if the plan makes provision for the payment of their claims in cash in full, or (c) if provision is made in the plan for the protection of the interests, claims, or liens of such creditor or class of creditors in the manner provided, in subdivision (b), clause (5), of this section.”
In so far as the reorganization permitted by section 77B requires approval by two-thirds of the creditors of each class and in so far as such approval is not requisite to confirmation from creditors whose claims are not affected or for the payment of which cash is provided, 77B follows substantially the provisions of section 77. It departs from that section in clause (c) of the proviso, which makes approval of creditors unnecessary “if provision is made in the plan for the protection of the interests, claims, or liens of such creditor or class of creditors in the manner provided in subdivision (b), clause (5), of this section.” 11 U.S.C.A. § 207 (e) (1) (c).
It therefore becomes necessary to consider subsection (b), clause (5), 11 U.S.C.A. § 207 (b) (5), which provides that the plan of reorganization “shall provide in respect of each class of creditors of which less than two thirds in amount shall accept such plan (unless the claims of such class of creditors will not be affected by the plan, or the plan makes provision for the payment of their claims in cash in full), provide adequate protection for the realization by them of the value of their interests, claims, or liens, if the property affected by such interests, claims, or liens is dealt with by the plan, either as provided in the plan (a) by the transfer or sale of such property subject to such interests, claims, or liens, or by the retention of such property by the debtor subject to such interests, claims, or liens, or (b) by a sale free of such interests, claims, or liens at not less than a fair upset price and the transfer of such interests, claims, or liens to the proceeds of such sale; or (c) by appraisal and payment either in cash of the value either of such interests, claims, or liens, or, at the objecting creditors’ election, of the securities allotted to such interests, claims, or liens under the plan, if any shall be so allotted; or (d) by such method as will in the opinion of the judge, under and consistent with the circumstances of the particular case, equitably and fairly provide such protection.”
It will be observed that section 77B, unlike section 77, furnishes a method by which a reorganization plan may be put into effect in the event that the debtor is unable to secure consent to its plan of two-thirds of each class of creditors to be affected thereby, not only without their approval, but, by necessary implication, despite their opposition. The plan may provide under subsection (b) (S) for the sale of the property subject to lien, for its sale free of liens and the transfer of the liens to the proceeds, or for the method recited in clauses (c) and (d). With the first two of the methods incorporated in the subsection, we are not concerned, because - the debtor does not desire to have the property sold either free from or subject to liens. It wishes to secure possession of the property and to resume its operation. We are concerned, therefore, only with the methods provided by which the debtor may regain its property without consent of creditors, have it appraised, and then relieve itself of obligation by paying each of them in cash, either (1) of the value of their interests, claims, or liens; or (2) at the creditors’ election (of the value) of the securities allotted to such interests, claims, or liens, if any shall be so allotted; or (3) by such method as will in the opinion of the judge equitably and fairly provide such protection.
The present debtor’s several plans of reorganization, particularly the third, arc in recognition of the futility under existing circumstances of securing the consent of two-thirds of its creditors of each class. It proceeds upon the assumption that such consent is not necessary by framing its reorganization plans under the alternative method provided by subsection (b) (5). We assume it to be unnecessary to give detailed consideration to the first or second plan, for, faced with a contention that neither is feasible, and that each would invade vested constitutional rights, it presented its third plan and modifications thereof, and we may assume that this represents up to the time of the decree its ultimate effort to repel attack upon the feasibility of reorganization, and upon asserted invalidity in the application of the statute.
We confess our inability to understand the debtor’s proposed reorganization plan in all of its phases, even after diligent study, effort to separate argument from concrete proposals, and an earnest attempt to reconcile apparently conflicting clauses. This much, however, seems reasonably clear: The debtor desires to have all the property which for two years has been in the possession of the equity receiver, including unmortgaged property, returned to it, subject to such liens as the court shall determine. It proposes that the bondholders shall have their securities scaled down to 80 per cent, of their face value, and that the court shall fix a reasonable rate of interest in place of the agreed interest. Nonassenting bondholders are to have the value of their securities fixed by the court, and to have a lien on the mortgaged property for such value, though it is also proposed to pay non-assenting' bondholders such ascertained value in cash.. The debtor proposes to pay for the unmortgaged property in the hands of the receiver the sum of $40,000 in cash at a time to be fixed by the court. For the further purpose of protecting bondholders, the debtor proposes to deposit $10,-000 to pay interest in advance upon the bonds for a three months’ period, but nothing is provided in the plan with respect to the defaulted interest upon the bonds during the two years that the debt- or’s properties have been in the hands of the receiver. Then follow provisions for a bond issue and for class A and class B preferred stock, out of the proceeds of which present unsecured creditors and preferred stockhdders are to be compensated. We make no effort to state them, for they are wholly incomprehensible. The court is also asked to reascertain the present holders of the debtor s mortgage bonds, and the amount due each bondholder although a judicial determination as to these matters has already been had m the equity proceedings by a master, with his report presumably confirmed by the court without objection thereto by the debtor, though a party to the receivership proceedings. From the argument, interwoven with the proposals of the submitted plan, it appears that the debtor is informed that 1 , .. . ,, ,, . some of the present bondholders have paid , . , j . , A . for their bonds an amount less than their , . , ., . , . „ face value, and it appears, mferentially . , . A' ’. at least, that the debtor desires the court , „ , ^ , i, ,, , to fix the amount due bondholders who , r . ., , have paid for their holdings since the be- ■ . , ?. . ginmng of the receivership an amount f , , 1 .1 •. less than their face value,- the amount ., , ^ , , so paid, and then have such amount scaled j ! on ^ „ ur down to 80 cents upon the dollar. We .,,, ^ . . are pointed to-no provision of the stat-t , • 1 ^ , . . ute which permits this to be done, and . , . . . - £ -1 , ,. , ’ mdependent inquiry fails to disclose any. 1 ^ J J
The reorganization plan is opposed on the ground that it is not presented in good faith, and that any scaling down of secured indebtedness or of agreed interest or denial of the right of lienholders to have the mortgaged property sold at public sale in accordance with the terms of the trust deed, is taking the property of the bondholders without due process in violation of the Fifth Amendment to the Constitution of the United States. While the court found the plan to have been presented in good faith, it is urged that the court erroneously applied the law; that good faith is not a question of honest motive or intention, but is to be determined by the feasibility of the plan and a reasonable expectation that it will be successful, in reliance upon Manati Sugar Company v. Mock et al., 75 F.(2d) 284 (C.C.A.2), and In re 235 West 46th Street Company, Inc., 74 F.(2d) 700 (C.C.A.2). The District Judge rejected the contention as to absence of good faith, but declared subsection (b) (5), in so far as it permits adjustment of liens without the consent of creditors, Constitutionally invalid, and dismissed the petition,
We have first t0 consider whether the tion of the debtor,s d faith in submitti its proposed plan of organization is j before this court the ma¡n L This involves a con_ sideration as t0 whether the decision be_ low that question involves ^ issue of Iaw izable n al under sec_ üon 24b_ It ig dear from tbe court>s memoranda that in decidi the issue of d faith it was gu¡ded mainl b a con_ sideration of the honesty of purpose on ^ of the debtor in submitting its ^ Section 77B does not undertake t0 define d faitbL We think it clea bowever5 in agreement with the Second drcuit that something more than sincerity , . . • , j j intention was intended. The purpose f ...... ... A f, , of the statute is to relieve distressed debt- ,- , . . < ., or corporations and to provide the me- , . ¿ , chames for reorganization where reason- ,, , .. , ,. , , , able expectation of continued useful ex- . . 1.^-1 . •. • , rr,, . istence may be fairly entertained. This , . J . . , being so, something more must be demon- . ® , (. ,, , , . 1. strated by the debtor than mere honesty r, x TJ. , ,, or sincerity of purpose. If not, then the . . ., way is open to the exploitation of every - . r . . -. , J involved corporation by visionaries whose , ...... - ,- illusory and optimistic imaginations out- . 1 . , .a , ., . run their business judgments, and the 111- . , r , J... . ’ ... . , terest of every legitimate creditor is at the mercy of debtors whose sole hope of financial salvation is an abiding faith in miracles. If we are right in this, there was erroneous application of the law in the finding of good faith, and the decree dismissing the petition should upon familiar principles governing appeals in equity be affirmed if right, however erroneous may be any given conclusion of law.
It appears from the record that the total assets of the debtor upon fair appraisal are worth less than $300,000. The bonded indebtedness exceeds $900,000, and the unsecured indebtedness is more than $300,000. To this must now be added the cost and expenses of the receivership. Moreover, the receiver has been operating at a loss, and the debtor concedes that it also will for a time operate at a loss; its most optimistic undertaking being, if the property is restored to it, to reduce current losses 25 per cent. When these figures are considered together with the vagueness of detail in the proposed plan, the doubt that exists as to whether under section 77B there may now be a reopening of the adjudication of the claims against the debtor in the equity proceeding, it seems clear to us that the proposed plan is not a workable plan, offers no reasonable prospect for successful rehabilitation of the debtor, and is in consequence not, in the sense the phrase is used in the section, presented in good faith.
Having concluded that the plan fails to meet the statutory test, it may appear that discussion should end here with mandate for affirmance of the decree, and that upon familiar principles no holding as to constitutionality of the assailed subsection is required. As was said by the Supreme Court in Howat v. Kansas, 258 U.S. 181, 184, 42 S.Ct. 277, 279, 66 L.Ed. 550, “Obviously we should not pass upon the constitutional validity of an act * * * unless the case before us requires it,” and in Euclid v. Ambler Realty Co., 272 U.S. 365, 397, 47 S.Ct. 114, 121, 71 L.Ed. 303, 54 A.L.R. 1016, “In the realm of constitutional law, especially, this court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue.” With profound deference to the canons of self-restraint to which courts subordinate their high power to inquire into the constitutional validity of acts of Congress, we have carefully explored the possibility of avoiding the constitutional question here presented. We are confronted with difficulty.
Faced with attack upon the feasibility of its plan of reorganization, the debt- or has repeatedly presented alternatives and modifications. This is its right, not only by virtue of the liberal spirit of the statute, but by the express language of subsection (f) (7) of section 77B (11 U.S.C.A. § 207 (f) (7), which provides that before or after a plan is confirmed changes -and modifications may be proposed therein by any party in interest. The debtor, having finally received approval of the court upon the good faith of its latest plan, proceeded no further in its efforts to comply with the statutory requirement in that respect. Were we now to rest - decision solely upon lack of good faith, it would seem appropriate to permit further proposals, for the debt- or, having been misled by the court, should not be precluded from further effort to meet statutory requirements. Moreover, we see no legal impediment to submission by the debtor, or at least by a group of friendly creditors, of an entirely new plan of reorganization not heretofore considered and adjudicated. In either event the constitutional question would remain open for ultimate decision upon perhaps no better presentation than at present, and the submission of amendments to more fully demonstrate good faith, purely academic and fruitless. In the meanwhile the property of the debtor and the security of the lienholders will be further depleted by operating losses of the receiver. We see no escape therefore from present decision upon the validity of subsection (b) (5).
The constitutionality of section 77B in its general scope and application is not here assailed, and, in view of the decision in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pac. Railway, supra, is perhaps not open to successful assault. That case, however, goes no farther in its consideration of the due process clause of the Fifth- Amendment than to hold that statutory provisions permitting delay in the enforcement of contracts affect only the remedy, and deals with a statute which does not permit adjustments of liens without lienholders’ consent. Such delay in the application of remedies impairs no vested right, and this was also the rationale of the decision in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 89 A.L.R. 1481, in consideration of the due process clause of the Fourteenth Amendment. We are here concerned only with the validity of a clause which provides for adjustment of debts without the consent of creditors. It has long been settled that provisions in bankruptcy statutes authorizing compositions have never been held to invalidate them. This is because a composition is a matter of agreement between the bankrupt and his creditors as a class, with the will of the majority imposed upon the minority. In re Lane (D.C.) 125 F. 772, 773; Cumberland Glass Mfg. Co. v. DeWitt, 237 U.S. 447, 452, 35 S.Ct. 636, 59 L.Ed. 1042.
We confine ourselves to the provisions of subsection (b) (5), which outline a method for adjustment of claims of nonassenting creditors, and inquire as to their validity in the light of the due process clause. Upon this issue we view' the decision of the Supreme Court in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106, controlling. Here, under Tennessee law, as there under Kentucky law, the lien holders had the .right under their contract to retain the lien until the indebtedness secured was paid, the right to realize upon the security by a judicial public sale, the right to determine when such sale should be held, subject' only to the discretion of the court, the right to protect their interest in the property by bidding at such sale, the right to have the mortgaged property devoted primarily to the satisfaction of the debt; and the right to control the property meanwhile during the period of default, subject only to the discretion of the court, and to have the rents and profits during such period applied to the satisfaction of the debt. These rights are substantive property rights, and any invasion of them under the authority of the present statute is as clearly violative of the due process clause of the Fifth Amendment as it was in the Radford Case. We have no occasion to renew our excursion into the history of bankruptcy legislation or to again undertake that realistic approach to the problem that we ventured upon in the Rad-ford Case when ito was considered by us (74 F.(2d) 576). That manner of approach was rejected by the Supreme Court as an aid to solution, and so must we now reject it when it is again urged upon us.
We hold subsection (b) (5) of section 77B (11 U.S.C.A. § 207 (b) (5) of the Bankruptcy Act unconstitutional and invalid in the respects indicated. Stripped of invalidity, the section is still an operable statute, and as to validity in its general scope and application there is no occasion for comment other than has been indicated.
The decree below is affirmed.
ALLEN, Circuit Judge (concurring).
I concur in the conclusion and in that part of the decision which relates to the unconstitutionality of the statute. The decision in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106, compels this result. I dissent, however, from that part of. the opinion which defines “good faith” as requiring’ feasibility of the plan proposed. Congress, in enacting the statute, required simply that the District Judge should be satisfied of “good faith.” In so doing, it doubtless bore in mind the fact that in innumerable cases covering every kind of legal situation, the courts of this country, from the highest to the lowest, have defined good faith as meaning honesty of purpose. It is an unfortunate circumstance that integrity and business acumen are not always united. In this statute the Congress required integrity, and the District Judge correctly found that good faith was shown in the submission of this plan.
Question: What is the second most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
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sc_caseorigin
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076
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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.
CONNOR et al. v. COLEMAN, UNITED STATES CIRCUIT JUDGE, et al.
No. 75-1184.
Decided May 19, 1976
Per Curiam.
This case is here on movants' motion, supported by the United States, for leave to file a petition for writ of mandamus. The motion is granted. Since the District Court may be expected to conform its proceedings to the views expressed in this opinion, consideration of the petition for writ of mandamus is continued to June 17, 1976.
Ten years of litigation have not yet resulted in a constitutionally apportioned Mississippi Legislature. The District Court for the Southern District of Mississippi in 1966 invalidated the 1962 apportionment. Connor v. Johnson, 256 F. Supp. 962 (1966). A legislative apportionment that followed was also declared unconstitutional. Thereupon the District Court promulgated its own plan for the 1967 elections. Connor v. Johnson, 265 F. Supp. 492 (1967). Still another legislative plan enacted in 1971 was held unconstitutional by the District Court and another court-ordered plan, this for the 1971 elections, was formulated. Connor v. Johnson, 330 F. Supp. 506 (1971). That court-promulgated plan, however, was stayed by this Court with direction that the District Court, “absent insurmountable difficulties,” should “devise and put into effect a single-member district plan for Hinds County” by June 14, 1971. Connor v. Johnson, 402 U. S. 690, 692 (1971). The District Court did not divide Hinds County into single-member districts because the court found that there were insurmountable difficulties.
After the 1971 elections this Court addressed the constitutionality of the 1971 court-formulated plan. Because the District Court had retained jurisdiction over plans for Hinds, Harrison, and Jackson Counties and had stated its intention to appoint a special master in January 1972 to consider the subdivision of those counties into single-member districts, we vacated the District Court judgment, without disturbing the 1971 elections, and remanded with direction to the District Court that “[s]uch proceedings should go forward and be promptly concluded,” declining meanwhile to consider the prospective validity of the court-formulated 1971 plan until the proceedings were completed and a final judgment was entered respecting the entire State. Connor v. Williams, 404 U. S. 549, 551-552 (1972). The District Court did not appoint a special master.
In April 1973 the Mississippi Legislature enacted an apportionment plan. Pending decision by the District Court of objections to that plan, however, the legislature in April 1975 adopted new legislation that differed from the 1971 court-formulated plan only in that Harrison, Hinds, and Jackson Counties remained multimember districts. The District Court thereupon dismissed the complaint addressed to the 1973 legislative plan and directed the filing of an amended complaint addressing the 1975 legislation. This was done and the District Court entered judgment approving the 1975 law. Connor v. Waller, 396 F. Supp. 1308 (1975). We reversed, holding that the 1975 legislation could not be effective as law until after clearance in compliance with § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c, and holding further that the District Court erred in deciding constitutional challenges to the Mississippi legislation based upon claims of racial discrimination. Connor v. Waller, 421 U. S. 656 (1975). We stated expressly, however, id., at 656-657, that the reversal was
“without prejudice to the authority of the District Court, if it should become appropriate, to entertain a proceeding to require the conduct of the 1975 elections pursuant to a court-ordered reapportionment plan that complies with this Court’s decisions in Mahan v. Howell, 410 U. S. 315 (1973); Connor v. Williams, 404 U. S. 549 (1972); and Chapman v. Meier, 420 U. S. 1 (1975).”
Thereafter Mississippi submitted the 1975 legislation to the Attorney General of the United States in compliance with § 5 of the Voting Rights Act. The Attorney General objected and accordingly the District Court held a hearing to formulate a court plan for the conduct of the 1975 elections. By orders entered in June 1975 the District Court promulgated a “temporary plan for the election of Senators and Representatives for the 1975 elections ONLY,” Motion for Leave to File Pet., App. 85a, and ordered the parties to file alternative permanent reapportionment plans. The District Court’s order of June 25, 1975, stated: “A permanent plan for reapportionment cannot be now formulated due to lack of time. When permanent plan for election of legislators in quadrennial elections of 1979 has been accomplished, special elections may be ordered in those legislative districts where required by law, equity, or the Constitution of the U. S.” Ibid. Motions by the United States and mov-ants sought the fixing of a specific date by which a permanent plan would be formulated and the fixing of a definite schedule for special elections. February 1, 1976, was suggested by the movants as the outside date for making a permanent plan effective, and the date of the November 1976 Presidential election as the date for special elections. On August 1, 1975, the District Court entered an order, Motion for Leave to File Pet., App. 88a, stating: “The Court declines to set a deadline of 2-1-76 for completion of a permanent plan for reapportionment . . . but reiterates its firm determination to have such plan approved before 2-1-76; as to all instances in which a special election may be required, the Court expects to direct the same shall be held in conjunction with the 1976 Presidential election . . . Proposed permanent plans were thereafter submitted by the United States and movants, and on January 26, 1976, the United States moved that a hearing be held on February 10, 1976, on the proposed permanent plans. However, three days later, January 29, 1976, the District Court denied the motion stating as its sole and only ground, Motion for Leave to File Pet., App. 90a, that “[f] urther hearing and decision of this case will be deferred until the Supreme Court shall have decided cited cases, at which time this Court will bring this case to trial forthwith . . .
The “cited cases” are East Carroll Parish School Board v. Marshall, No. 73-861, cert. granted, 422 U. S. 1055 (1975); Beer v. United States, No. 73-1869, probable jurisdiction noted, 419 U. S. 822 (1974); and United Jewish Organizations of Williamsburgh, Inc. v. Carey, No. 75-104, cert. granted, 423 U. S. 945 (1975). There is no occasion for the District Court any longer to postpone the hearing on the proposed permanent plan awaiting this Court's decisions of those cases. East Carroll was decided March 8, 1976, 424 U. S. 636, and Beer was decided March 30, 1976, ante, p. 130. United Jewish Organizations is not scheduled for argument this Term but no question similar to the question presented in that case is presented in this case. There is accordingly no justification on the ground stated for delaying further a final decision in this long-pending case that complies with Connor v. Williams, supra. Rather, in our view the District Court should in the circumstances promptly carry out the assurance given in its order of January 29, 1976, to “bring this case to trial forthwith . . .” and schedule a hearing to be held within 30 days on all proposed permanent reapportionment plans to the end of entering a final judgment embodying a permanent plan reapportioning the Mississippi Legislature in accordance with law to be applicable to the election of legislators in the 1979 quadrennial elections, and also ordering any necessary special elections to be held to coincide with the November 1976 Presidential and congressional elections, or in any event at the earliest practicable date thereafter. Assuming as we do that the District Court will promptly conform its proceedings to give effect to these views, consideration of the petition for writ of mandamus is continued to June 17, 1976.
It is so ordered.
The Chief Justice concurs in granting the motion but does not join the per curiam opinion.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_appbus
|
3
|
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.
In re BERGSOE METAL CORPORATION, a Delaware corporation, SSN I.D. No. 93-0174023, Debtor, David A. HILL, trustee for Bergsoe Metal Corporation and; United States National Bank of Oregon, a national banking association, Plaintiffs, v. The EAST ASIATIC COMPANY, LTD.; The East Asiatic Company, Inc.; Heidelberg Eastern, Inc., Defendants-Counterclaimants/Appellants, v. PORT OF ST. HELENS, Counterdefendant/Appellee.
No. 89-35397.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 7, 1990.
Decided Aug. 9, 1990.
Elizabeth A. Conklyn, Bogle & Gates, Seattle, Wash., for defendants-counter-claimants/appellants.
Jeffrey M. Batchelor, Spears, Lubersky, Bledsoe, Anderson, Young & Hilliard, Portland, Or., for counterdefendant/appellee.
Before BROWNING, ALARCON and KOZINSKI, Circuit Judges.
KOZINSKI, Circuit Judge:
The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. (CERCLA), provides that the “owner” of a contaminated facility is liable for the costs of cleanup. It is left for the courts, however, to clean up the mess left behind by complicated financial transactions. We search for the CERCLA owner.
Facts
Bergsoe Metals is a Delaware corporation formed in 1978 for the purpose of conducting a lead recycling operation. The East Asiatic Company, Ltd., The East Asiatic Company, Inc. and Heidelberg Eastern, Inc. (collectively, EAC) are owners of Berg-soe’s stock. The Port of St. Helens is a municipal corporation organized under the laws of Oregon and empowered to issue revenue bonds to promote industrial development in the St. Helens, Oregon area.
Sometime in 1978, representatives of Bergsoe contacted the Port to discuss the building of a lead recycling facility in St. Helens. These discussions resulted in a Memorandum of Agreement signed December 13, 1978. The Port therein agreed to issue industrial development revenue bonds and pollution control revenue bonds to provide funds for the acquisition of land and the construction of a secondary lead recycling plant and related pollution control equipment in St. Helens.
On December 28, 1979, the Port sold Bergsoe 50 acres of land on which to construct the plant. In exchange, Bergsoe gave the Port a promissory note for $400,-000 and a mortgage on the property.
Through a series of interlocking transactions that closed on June 5, 1981, Bergsoe, the Port and the United States National Bank of Oregon completed the financing for the recycling operation. At the heart of this financing were the revenue bonds, issued by the Port. The Bank held the bonds in trust for the bondholders. The revenue from the bond sales went to Berg-soe, which was obligated to pay the money owed on the bonds to the Bank.
The first transaction was a sale-and-lease-back arrangement between Bergsoe and the Port. Bergsoe conveyed to the Port by warranty deed the 50 acres and the recycling plant to be built there. The Port and Bergsoe then entered into two leases to cover the property and the plant. Berg-soe agreed to construct the plant and to pay rent on the leases directly to the Bank. That rent was equal to the principal and interest to come due on the bonds. The leases gave Bergsoe the option of purchasing the entire facility for $100 once the bonds had been paid in full.
The second transaction involved two mortgage and indentures of trust between the Port and the Bank, corresponding to the two leases. The Port agreed to issue its revenue bonds, and mortgaged to the Bank, as trustee for the bondholders, the property and recycling plant. The Port also assigned to the Bank all its rights under, and revenues to be generated from, the leases. The Bank agreed to hold the amounts generated from sale of the bonds in a construction fund to be paid to Berg-soe. The indentures obligated the Bank to collect rent under the leases and to apply them in retirement of the bonds.
In addition to acting as trustee, the Bank purchased the bonds. In partial consideration for this purchase, the Port signed a subordination agreement whereby the Port subordinated all its rights under the prior $400,000 obligation to the Bank’s rights under the leases.
The Port also placed in escrow with the Bank the warranty deeds, bills of sale and UCC release statements, with instructions to deliver the documents to Bergsoe when the company exercised its option to purchase the facility.
The Bergsoe recycling plant began operation in the spring of 1982 and soon experienced financial difficulties. In September 1983, the Bank declared Bergsoe in default on the leases. Subsequently, the Bank and Bergsoe agreed upon a workout arrangement, whereby Front Street Management Corporation would manage the recycling facility. In exchange, the Bank and the Port would agree not to foreclose under the leases or bond indentures. On June 30, 1984, the Bank, Bergsoe, Front Street and the Port executed various workout documents.
The plant did no better under Front Street’s management than it had under Bergsoe’s, and the plant shut down in 1986. On October 21 of that year, the Bank put Bergsoe into involuntary bankruptcy under Chapter 11 of the Bankruptcy Code. By that time, the Oregon Department of Environmental Quality had determined that various hazardous substances had contaminated the plant site. In September 1987, the Bank and the trustee in bankruptcy filed suit against EAC, the companies who own Bergsoe, to collect on Bergsoe’s debts. The plaintiffs subsequently amended their complaint to request a declaration that EAC is liable for the costs of cleaning up the environmental contamination.
The defendants filed a counterclaim, including a third party complaint against the Port, alleging that the Bank and the Port are liable for the costs of cleanup under CERCLA. The Port moved for summary judgment, alleging that it does not own the recycling plant for CERCLA purposes, and therefore has no CERCLA liability. The bankruptcy court granted the motion, which the district court affirmed. EAC appeals the grant of summary judgment in favor of the Port.
Discussion
CERCLA holds the “owner” of a facility liable for the costs of cleaning up hazardous substances released at the facility. 42 U.S.C. §§ 9607(a)(1) & (2). The CERCLA definition of “owner” is not, however, coextensive with all possible uses of that term; it specifically excludes “a person, who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect his security interest in the vessel or facility.” 42 U.S.C. § 9601(20)(A). CERCLA thus protects secured creditors who do not participate in management of the facility. See United States v. Fleet Factors Corp., 901 F.2d 1550, 1554 (11th Cir.1990).
There is no question that, in at least one sense, the Port owns the Bergsoe recycling plant: the deed to the property is in the name of the Port. The Port nonetheless maintains that it is not a CERCLA owner because it falls within the security interest exception.
In order for the Port to win on summary judgment, the undisputed facts must demonstrate both that the Port holds indicia of ownership primarily to protect its security interest in the Bergsoe plant and that it did not participate in the management of the plant. If, after viewing the evidence most favorably to EAC, there is a material issue as to either of these points, summary judgment is inappropriate. See Karamanos v. Egger, 882 F.2d 447, 449 (9th Cir.1989).
I. Security Interest
That the Port holds paper title to the Bergsoe plant does not, alone, make it an owner of the facility for purposes of CERCLA; under the security interest exception the court must determine why the Port holds such indicia of ownership. Here, there is no doubt that the Port has the deed in the plant primarily to ensure that Bergsoe would meet its obligations under the leases and therefore under the bonds. In other words, the Port has a security interest in the property.
The Port is in somewhat of a different position than the ordinary secured creditor, who holds indicia of ownership to ensure that it will be paid what it is owed. Here, the Port held title to the property not to ensure that it would receive payment, but to guarantee that Bergsoe would cover the Port’s own indebtedness under the bonds. This does not change the analysis. Indeed, it demonstrates just how divorced from the Bergsoe operation the Port was. Essentially, the Bank financed the Bergsoe plant; the Port’s only involvement was to give its approval to the project and to issue the bonds that served as the vehicle for the financing. The Port received the warranty deeds as part of a transaction whose sole purpose was to provide financing for the plant.
The relevant evidence that the Port’s ownership was merely part of the financing arrangement is to be found in the Port/Bergsoe leases. These documents do grant to the Port the deeds to the property, and each document is described as a “lease” rather than as a “security agreement.” Nonetheless, the leases give to Bergsoe all other traditional indicia of ownership, such as responsibility for the payment of taxes and for the purchase of insurance; significantly, the leases assign to Bergsoe the risk of loss from destruction or damage to the property.
Even more telling, however, are the terms of repayment under the leases. Bergsoe’s “rent” was equal to the principal and interest due under the bonds. The money was to be paid directly to the Bank as trustee for the bondholders. The leases expired not on a specific date, but when the money owed under the bonds was paid off. And, when the bonds were paid off, Berg-soe could purchase full title to the property for the nominal sum of $100. To facilitate this transaction, the Port had placed the deeds and other relevant documents in escrow with the Bank.
EAC points to nothing other than the leases to demonstrate that the Port’s indi-cia of ownership are not primarily to protect a security interest. The leases create no material issue of fact on this question.
II. Participation in Management
The Port may nonetheless be liable under CERCLA if it participated in the management of the Bergsoe plant. Unfortunately, CERCLA does not define the phrase “participating in the management ... of a facility.” The statute thus provides little guidance as to how much control over a facility a secured creditor can exert before it will be liable for cleanup.
To date, only one federal circuit has addressed this question. In Fleet Factors, the Eleventh Circuit considered several alternative rules. The government proposed that a secured creditor that participates in any manner in the management of a facility is excluded from the security interest exemption. Id, 901 F.2d at 1554. Fleet Factors proposed a rule adopted by certain district courts, that participation in financial management is allowable, but participation in the day-to-day or operational management of a facility will subject the creditor to liability. Id. The Eleventh Circuit adopted an intermediate rule:
[A] secured creditor may incur section 9607(a)(2) liability ... by participating in the financial management of a facility to a degree indicating a capacity to influence the corporation’s treatment of hazardous wastes. It is not necessary for the secured creditor actually to involve itself in the day-to-day operations of the facility in order to be liable — although such conduct will certainly lead to the loss of the protection of the statutory exemption. Nor is it necessary for the secured creditor to participate in management decisions related to hazardous waste. Rather, a secured creditor will be liable if its involvement with the management of the facility is sufficiently broad to support the inference that it could affect hazardous waste disposal decisions if it so chose.
Id, at 1557-58.
We leave for another day the establishment of a Ninth Circuit rule on this difficult issue. It is clear from the statute that, whatever the precise parameters of “participation,” there must be some actual management of the facility before a secured creditor will fall outside the exception. Here there was none, and we therefore need not engage in line drawing.
EAC points to several facts that it claims demonstrate that the Port participated in the management of the Bergsoe plant. First, that the Port “negotiated and encouraged” the building of the Bergsoe plant. Brief of Appellant at 19. Were this sufficient to remove a creditor from the security interest exception, the exception would cease to have any meaning. Creditors do not give their money blindly, particularly the large sums of money needed to build industrial facilities. Lenders normally extend credit only after gathering a great deal of information about the proposed project, and only when they have some degree of confidence that the project will be successful. A secured creditor will always have some input at the planning stages of any large-scale project and, by the extension of financing, will perforce encourage those projects it feels will be successful. If this were “management,” no secured creditor would ever be protected.
EAC next points to certain of the Port’s rights under the leases, such as the right to inspect the premises and to reenter and take possession upon foreclosure. This argument suffers from the same flaw as the last; nearly all secured creditors have these rights. That a secured creditor reserves certain rights to protect its investment does not put it in a position of management. What is critical is not what rights the Port had, but what it did. The CERCLA security interest exception uses the active “participating in management. Regardless of what rights the Port may-have had, it cannot have participated in management if it never exercised them. And there is no evidence that the Port exercised any control over Bergsoe once the two parties signed the leases.
Finally, EAC argues that the Port participated in management through its actions in giving Front Street control at the plant as part of the 1984 workout. There is, however, no evidence that the Port participated in the decision to hire Front Street; those negotiations were entirely between the Bank, Bergsoe and Front Street. The Port’s participation was limited to an agreement between itself, the Bank and Bergsoe. The Port’s sole obligation under the agreement was to forego exercising any of its default remedies under the leases so that the workout might proceed. There were separate agreements between Bergsoe and Front Street and between the Bank and Bergsoe. The Port never entered into a contract with Front Street, and there is no evidence of any negotiations between the two.
EAC contends, nonetheless, that the Port is responsible for the Bank’s actions in placing Front Street in control because the Bank was acting as the Port’s agent, enforcing the Port’s rights under the leases. This assertion is belied by the terms of the mortgage and indentures of trust between the Port and the Bank, wherein the Port assigns to the Bank “all right, title and interest of the [Port] in the Lease[s].” ER I at 107. Thus, to the extent the Bank was attempting to enforce the lease terms, it did so pursuant to its own rights under the leases. More to the point, it was not the leases that the Bank was worried about, but the bonds. As trustee for the bondholders, the Bank had a duty to try to keep the plant running so that Bergsoe could pay the principal and interest under the bonds. In negotiating the workout, the Bank was acting not as the Port’s agent, but as the bondholders’.
Conclusion
There being no material issue of fact, we conclude that the Port holds indicia of ownership primarily to protect its security interest and that it did not participate in the management of the Bergsoe recycling plant. The Port is therefore not an owner under 42 U.S.C. § 9601(20)(A), and not liable for cleanup costs under 42 U.S.C. § 9607. The judgment of the district court is affirmed.
. CERCLA also holds liable for cleanup parties other than the owner of a facility. See 42 U.S.C. § 9607(a). EAC does not contend, however, that the Port would be liable under any of these other provisions.
. No doubt the Port, as a municipal corporation empowered to promote industrial development, encouraged Bergsoe to build the plant for reasons other than the Port’s own financial gain. A creditor’s motivation is irrelevant, however, to the issue of whether its actions constitute management.
. EAC also contends that the Port had the right “to direct that hazardous waste be stored properly.” Brief of Appellant at 20. We find nothing in the leases granting the Port such a right. In any event, there is no evidence that the Port ever exercised this right.
EAC generally errs in equating the power to manage with actual management. As did the Eleventh Circuit in Fleet Factors, we hold that a creditor must, as a threshold matter, exercise actual management authority before it can be held liable for action or inaction which results in the discharge of hazardous wastes. Merely having the power to get involved in management, but failing to exercise it, is not enough.
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_r_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
JOHN M. HIRST & CO. v. GENTSCH.
No. 9244.
Circuit Court of Appeals, Sixth Circuit.
Feb. 8, 1943.
William A. Southworth, of Cleveland, Ohio (Squire, Sanders & Dempsey, Edwin H. Chaney, and William A. Southworth, all of Cleveland, Ohio, on the brief), for appellant.
Joseph M. Jones, of Washington, D. C. (Samuel O. Clark, Jr., Sewall Key, J. L. Monarch, and Fred J. Neuland, all of Washington, D. C., and Don C. Miller and F. B. Kavanagh, both of Cleveland, Ohio, on the brief), for appellees.
Before SIMONS, MARTIN, and McALLISTER, Circuit Judges.
SIMONS, Circuit Judge.
The single question presented upon the appeal relates to the jurisdiction of the court to restrain collection of taxes assessed against the appellant under the Federal Insurance Contributions Act (Internal Revenue Code, Chapt. 9, sub-Chapt. A, § 1400 et seq., approved February 10, 1939, 53 Stat. 175, 26 U.S.C.A. Int.Rev.Code, § 1400 et seq.), and the Federal Unemployment Tax Act (Internal Revenue Code, Chapt. 9, sub-Chapt. C, § 1600 et seq., 53 Stat. 183, 26 U.S.C.A. Int.Rev.Code, § 1600 et seq). The District Court dismissed the bill on the ground that it lacked jurisdiction in view of § 3653 of Title 26 U.S.C.A. Int. Rev.Code, and also upon the ground that the complaint sets forth no facts which, if true, would entitle plaintiff to the relief prayed for.
The amended complaint alleges the plaintiff to be a partnership engaged in the production of bituminous coal in Carroll County, Ohio. Its mine has been operated since 1925 by members of the partnership, and was acquired from a predecessor partnership which previously had acquired it from a corporate owner. It is alleged that the members of the plaintiff's partnership organization receive their compensation only by way of semi-monthly distributions from partnership earnings, and that the taxes which the Collector has sought from it, were assessed wholly with respect to such distributions. It is asserted that the partnership is not subject to such taxes, nor to the penalties which have been added thereto; that the partnership is unable to pay such taxes, penalties, and interest, without liquidation of its property, and that if the Collector, whose duty it is to collect them, proceeds to do so by distraint o‘r levy, the plaintiff will be forced into complete cessation of its mining operations and its business will be ruined. It alleges, therefore, that it has no adequate remedy at law.
Section 3653 of the Internal Revenue Code was formerly § 3224 of the Revised Statutes, and provides: “Except as provided in sections 272(a), 871(a), and 1012 (a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.”
It has been construed in a long line of cases to withdraw from the courts the power to restrain assessment or collection of taxes where the challenge is to the validity or applicability of the tax. Its restraint is not, however, absolute, and beginning with Dodge v. Brady, 240 U.S. 122, 126, 36 S.Ct. 277, 60 L.Ed. 560, through Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822, and Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 52 S.Ct. 260, 76 L.Ed. 422, an exception to the universality of its application has been recognized in cases which, though apparently within its terms, present extraordinary and entirely exceptional circumstances to make its provisions inapplicable. The latest case to sustain the jurisdiction of the court to take cognizance of a suit for injunction, is Allen, Collector v. Regents of the University, 304 U.S. 439, 448, 58 S.Ct. 980, 82 L.Ed. 1448. It must be observed, however, that the later decisions were not reached without vigorous protest by members of the present court, including the Chief Justice.
The circumstances that are to be considered extraordinary or exceptional have never, of course, been catalogued. In Miller v. Standard Nut Margarine Co., supra, however, the fact that the collection of a tax would prove to be arbitrary and oppressive, destroy the business of the taxpayer, ruin it financially, and inflict loss for which it would have no remedy at law, was held to indicate circumstances so extraordinary and exceptional as to give jurisdictional sanction to an application for injunction restraining the collection of the tax. Recently, under substantially identical circumstances in Midwest Haulers Inc., v. Brady, Acting Collector, 6 Cir., 128 F.2d 496, we reversed a judgment declining jurisdiction of a petition for injunction. We there pointed to the genesis of § 3653 and traced the development of the principle underlying the exceptions to its application. This discussion need not be repeated. The present case requires the application of the same principle as governed that adjudication and must be similarly decided.
The complaint below having been dismissed upon motion, its allegations must be taken as true, and so considered they show that the taxes sought to be collected from the appellant are probably not validly assessed taxes, and if collection is enforced by distraint the appellant will be ruined in its business and forced to close its mine. In that event no remedy provided by the Internal Revenue Law would be adequate to compensate the appellant for its loss. There is thus presented a case under the authorities, as we read them, for the interposition of a court of equity, and the exercise of its extraordinary equity power.
The District Judge, recognizing, in support of the appellant’s petition, the force of the decision in Miller v. Standard Nut Margarine Co., supra, entertained doubt that it may now be followed or applied with judicial assurance, in view of the trend of decision exemplified by Toucey v. New York Life Insurance Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100, 137 A.L.R. 967, and Southern Ry. Co. v. Painter, 314 U.S. 155, 62 S.Ct. 154, 86 L.Ed. 116. While the Toucey and Painter cases do not deal with § 3653, and are concerned with injunctions to restrain proceedings in state courts, the doubt so expressed poses for us once more a problem recently met in a number of cases. In a time of evolutionary development in constitutional and statutory interpretation, we are urged to base decision upon a foreshadowing of adjudications to come rather than upon clearly applicable precedents. Whatever course others may take, we are content to adhere to the observation made by us in Ammond v. Pennsylvania R. R. Co., 6 Cir., 125 F.2d 747, 751, to which we may add that, until the contrary is demonstrated, we find the rule of stare decisis a safer guide to decision than a reading of the stars.
Judgment reversed and the cause remanded for consideration of the petition.
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Glenn W. SMITH, Appellant, v. SWIFT AND COMPANY, a corporation, Appellee.
No. 7163.
United States Court of Appeals Tenth Circuit.
July 25, 1963.
T 7 „ . , _ . Tr John Berglund, Clay Center, Kan. (Wfiliam L. Rees, Topeka, Kan., on the brief), for appellant.
_ Charles A. Walsh, Concordia, Kan. (R. A. Brown, St. Joseph, Mo., on the brief), for appellee.
Before BREITENSTEIN, HILL and SETH, Circuit Judges.
SETH Circuit Judge.
„ This suit was commenced by appellant, a turkey grower, to recover from appel-lee, Swift and Company, the price of a flock of turkeys it purchased from him. The case was removed to the United States District Court for the District of Kansas, where it was tried without a jury. The judge found for the appellee and this appeal was taken.
The appellant had entered into a contract with Dannen Mills, Inc., which is not a party to this action, whereby that company was to furnish him with turkey poults, feed, and assistance in raising a flock of turkeys. Appellant executed and delivered to Dannen Mills, Inc. notes and mortgages covering the purchase price of the poults and of the feed. There is no , , .. ..... . dispute as to the validity or coverage of ,, * , ml . , these mortgages. There is also agree- ° . . , ment that there was a balance due by ,, , . ,, , . , the terms of the mortgages from appel- . , , ^ T . ,, , lant to Dannen Mills, Inc. m the amount , , ... ... .. ’ , °f abo,lt f,8d°“-00; fp?el howe™r does assert that the technical advisor pro- .... „ T . , ,1 , vided by Dannen Mills, Inc. introduced ,. .... . ’. . , a disease into the flock which caused considerable damage. At the end of the growing season, appellee, Swift and Cornpany, purchased the turkeys for an agreed price of $20,615.40 which was less than the balance due Dannen Mills, Inc. under the mortgages. This sale was agreed upon by appellant, by appellee, by representatives of Dannen Mills, Inc., and by representatives of Farmers’ Co°P- pother feed company which held a seconcl mortgage). Appellee was then instructed by appellant, by Dannen Mills, and by Farmers’ Co-op. that it should issue two checks for the turkeys, each one payable to appellant (mortgagor), to Dannen Mills, Inc. (the first mortgagee), and ^ Farmerg, c (second mort_ gagee) ginee ^ a]1 had an interegt ^ the turkeyg, Theg0 instructions as to the checks were given several weeks before the sale was consummated. These checks were so prepared and delivered to Farmers’Co-op. where they were held for several months and then delivered to Dannen Mills, Inc. The checks were voided by appellee nearly a year after issue and the purchase price was then id by llee gde] to Dannen Mm jnc
The appellant urges that the mortgagee in consenting to the sale of the turkeys waived its mortgage lien. It is certainly a general rule that the mortgagee’s consent to the sale of mortgaged property by the mortgagor is, in the absence of an understanding or of a condition as tío the application of the pro-eeeds, a waiver of the mortgage lien. Annot., 36 A.L.R. 1379. However it is equally well recognized that there is an exception to this rule where it is a condition that the proceeds be applied to discharge the mortgage. Annot., 36 A.L.R. 1379. Here there is no question but that the mortgagee and the mortgagor-appellant agreed with the appellee that the sale would be made. The record also shows that several weeks before the sale was consummated, these interested parties also agreed that each of the checks for the purchase price was to be made payable as above described. The record shows, and the court found, this agreement was not made at the time the sale was concluded as appellant contends, but before. The use of joint checks shows that the parties agreed to preserve their interests in the proceeds, and there is no evidence to the contrary. The trial court concluded that under the agreement for the sale of the turkeys and the agreement as to the payees of the checks, the mortgage lien attached to the proceeds of the sale. These proceeds were paid by appellee to the mortgagee. The court further observed that the agreement as to the payees of the checks would not be consistent with a relinquishment by Dannen Mills of its lien on the proceeds of the sale of the mortgaged turkeys. The record clearly supports the findings upon which these conclusions were based. Muse, Spivey & Co. v. Lehman, 30 Kan. 514, 1 P. 804, was an early Kansas case where mortgaged grain was sold with the consent of the mortgagor and mortgagee, and with an agreement that the lien follow the proceeds. The court there held that the mortgage lien was effective as to the proceeds of sale as against other creditors of the mortgagor. Annot., 36 A.L.R. 1384. There are also authorities from other jurisdictions on this point, including Smith v. Brooks, 154 Neb. 93, 47 N.W.2d 389, and Clatworthy v. Ferguson, 72 Colo. 259, 210 P. 693. Appellant urges that Reese v. Kapp, 82 Kan. 304, 108 P. 96, holds to the contrary, but it appears instead that the court was there concerned only with whether or not the mortgagee’s consent to the sale had to be in writing. The finding's of the trial court in the ease at bar on this point are amply supported by the evidence.
Appellant urges also that it was error for the trial court to refuse to admit evidence to support appellant’s claim of damages against Dannen Mills, Inc., allegedly caused by its technical advisor. Appellant offered proof on this point. As mentioned above, Dannen Mills, Inc. was not a party to this suit at any time. The claim by appellant against it was unliquidated, and thei-e was no connection or relationship between appellee, which was the purchaser of the turkeys at the end of the season, and Dannen Mills as to what may have occurred during the growing season. This matter of damages between appellant and the third party mortgagee could not have been properly tried in this action in the absence of such mortgagee. Appellant cites Miller v. Thayer, 96 Kan. 278, 150 P. 537, and Commercial State Bank v. Baker, 99 Kan. 248, 161 P. 620, but these cases do not hold to the contrary.
The appellant asserts that there was a trust created during the transaction or by the check; however we do not find that the elements of such a relationship were present. The appellee paid the agreed price for the turkeys to Dannen Mills which had a lien on the proceeds and to whom the obligation was owed by appellant under the mortgages. Appellant urges he had a right of action against Dannen Mills, but the court correctly held he could not assert it here. The court also found he has never made a demand on it nor filed suit against Dannen Mills. As between the parties before the court, the appellant is not entitled to the proceeds of the sale.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_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.
RIEGEL, INDIVIDUALLY AND AS ADMINISTRATOR OF ESTATE OF RIEGEL v. MEDTRONIC, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 06-179.
Argued December 4, 2007
Decided February 20, 2008
Allison M. Zieve argued the cause for petitioner. With her on the briefs were Brian Wolfman, Scott L. Nelson, and Wayne P. Smith.
Theodore B. Olson argued the cause for respondent. With him on the brief were Matthew D. McGill, Amir C. Tayrani, Kenneth S. Getter, David M. Gossett, and Andrew E. Tauber.
Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Daryl Joseffer, Douglas N. Letter, Sharon Swingle, and Daniel Meron
Briefs of amici curiae urging reversal were filed for the State of New York et al. by Andrew M. Cuomo, Attorney General of New York,' Barbara D. Underwood, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, and Richard Dearing and Cecelia Chang, Assistant Solicitors General, and by the Attorneys General for their respective jurisdictions as follows: Terry Goddard of Arizona, Dustin McDaniel of Arkansas, Richard Blumenthal of Connecticut, Joseph R. Bidden III of Delaware, Linda Singer of the District of Columbia, Bill McCollum of Florida, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Tom Miller of Iowa, Paul J. Morrison of Kansas, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Catherine Cortez Masto of Nevada, Gary K. King of New Mexico, Wayne Stenehjem of North Dakota, Marc Dann of Ohio, Hardy Myers of Oregon, Henry D. McMaster of South Carolina, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Rob McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Patrick J. Crank of Wyoming; for AARP et al. by David C. Frederick and Brendan J. Crimmins; for the American Association for Justice et al. by Jeffrey Robert White and Kathleen Flynn Peterson; for the Consumers Union of United States, Inc., by Lisa Heinzerling and Mark Savage; for the Public Health Advocacy Institute et al. by Timothy J. Dowling; and for Senator Edward M. Kennedy et al. by William B. Schultz.
Briefs of amici curiae urging affirmance were filed for the Advanced Medical Technology Association et al. by Carter G. Phillips, Daniel E. Troy, Rebecca K. Wood, Eamon P. Joyce, Michael W. Davis, Paul J. Maloney, and William J. Carter; for the Chamber of Commerce of the United States of America by Alan TJntereiner, Robin S. Conrad, and Amar D. Sarwal; for CropLife America et al. by Lawrence S. Ebner and Douglas T. Nelson; for the Product Liability Advisory Council, Inc., by Robert N. Weiner; and for the Washington Legal Foundation by Daniel J. Popeo and Richard A. Samp.
Justice Scalia
delivered the opinion of the Court.
We consider whether the pre-emption clause enacted in the Medical Device Amendments of 1976, 21 U. S. C. § 360k, bars common-law claims challenging the safety and effectiveness of a medical device given premarket approval by the Food and Drug Administration (FDA).
I
A
The Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended, 21 U. S. C. § 301 et seq., has long required FDA approval for the introduction of new drugs into the market. Until the statutory enactment at issue here, however, the introduction of new medical devices was left largely for the States to supervise as they saw fit. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 475-476 (1996).
The regulatory landscape changed in the 1960’s and 1970’s, as complex devices proliferated and some failed. Most notably, the Daikon Shield intrauterine device, introduced in 1970, was linked to serious infections and several deaths, not to mention a large number of pregnancies. Thousands of tort claims followed. R. Bacigal, The Limits of Litigation: The Daikon Shield Controversy 3 (1990). In the view of many, the Daikon Shield failure and its aftermath demonstrated the inability of the common-law tort system to manage the risks associated with dangerous devices. See, e. g., S. Foote, Managing the Medical Arms Race 151-152 (1992). Several States adopted regulatory measures, including California, which in 1970 enacted a law requiring premarket approval of medical devices. 1970 Cal. Stats, ch. 1573, §§ 26670-26693; see also Leflar & Adler, The Preemption Pentad: Federal Preemption of Products Liability Claims After Medtronic, 64 Tenn. L. Rev. 691,703, n. 66 (1997) (identifying 13 state statutes governing medical devices as of 1976).
Congress stepped in with passage of the Medical Device Amendments of 1976 (MDA), 21 U. S. C. § 360c et seq., which swept back some state obligations and imposed a regime of detailed federal oversight. The MDA includes an express pre-emption provision that states:
“Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement—
“(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and
“(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.” §360k(a).
The exception contained in subsection (b) permits the FDA to exempt some state and local requirements from pre-emption.
The new regulatory regime established various levels of oversight for medical devices, depending on the risks they present. Class I, which includes such devices as elastic bandages and examination gloves, is subject to the lowest level of oversight: “general controls,” such as labeling requirements. § 360c(a)(l)(A); FDA, Device Advice: Device Classes, http://www.fda.gov/cdrh/devadvice/3132.html (all Internet materials as visited Feb. 14, 2008, and available in Clerk of Court’s case file). Class II, which includes such devices as powered wheelchairs and surgical drapes, ibid., is subject in addition to “special controls” such as performance standards and postmarket surveillance measures, § 360c(a)(l)(B).
The devices receiving the most federal oversight are those in Class III, which include replacement heart valves, implanted cerebella stimulators, and pacemaker pulse generators, FDA, Device Advice: Device Classes, supra. In general, a device is assigned to Class III if it cannot be established that a less stringent classification would provide reasonable assurance of safety and effectiveness, and the device is “purported or represented to be for a use in supporting or sustaining human life or for a use which is of substantial importance in preventing impairment of human health,” or “presents a potential unreasonable risk of illness or injury.” § 360c(a)(l)(C)(ii).
Although the MDA established a rigorous regime of premarket approval for new Class III devices, it grandfathered many that were already on the market. Devices sold before the MDA’s effective date may remain on the market until the FDA promulgates, after notice and comment, a regulation requiring premarket approval. §§ 360c(f)(l), 360e(b)(l). A related provision seeks to limit the competitive advantage grandfathered devices receive. A new device need not undergo premarket approval if the FDA finds it is “substantially equivalent” to another device exempt from premarket approval. § 360c(f)(l)(A). The agency’s review of devices for substantial equivalence is known as the § 510(k) process, named after the statutory provision describing the review. Most new Class III devices enter the market through § 510(k). In 2005, for example, the FDA authorized the marketing of 3,148 devices under § 510(k) and granted premarket approval to just 32 devices. P. Hutt, R. Merrill, & L. Grossman, Food and Drug Law 992 (3d ed. 2007).
Premarket approval is a “rigorous” process. Lohr, supra, at 477. A manufacturer must submit what is typically a multivolume application. FDA, Device Advice — Premarket Approval (PMA) 18, http://www.fda.gov/cdrh/devadvice/ pma/printer.html. It includes, among other things, full reports of all studies and investigations of the device’s safety and effectiveness that have been published or should reasonably be known to the applicant; a “full statement” of the device’s “components, ingredients, and properties and of the principle or principles of operation”; “a full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and, when relevant, packing and installation of, such device”; samples or device components required by the FDA; and a specimen of the proposed labeling. § 360e(c)(l). Before deciding whether to approve the application, the agency may refer it to a panel of outside experts, 21 CFR § 814.44(a) (2007), and may request additional data from the manufacturer, § 360e(c)(l)(G).
The FDA spends an average of 1,200 hours reviewing each application, Lohr, 518 U. S., at 477, and grants premarket approval only if it finds there is a “reasonable assurance” of the device’s “safety and effectiveness,” § 360e(d). The agency must “weig[h] any probable benefit to health from the use of the device against any probable risk of injury or illness from such use.” § 360c(a)(2)(C). It may thus approve devices that present great risks if they nonetheless offer great benefits in light of available alternatives. It approved, for example, under its Humanitarian Device Exemption procedures, a ventricular assist device for children with failing hearts, even though the survival rate of children using the device was less than 50 percent. FDA, Center for Devices and Radiological Health, Debakey VAD Child Left Ventricular Assist System-H030003, Summary of Safety and Probable Benefit 20 (2004), http://www.fda.gov/cdrh/pdf3/H030003b.pdf.
The premarket approval process includes review of the device’s proposed labeling. The FDA evaluates safety and effectiveness under the conditions of use set forth on the label, § 360c(a)(2)(B), and must determine that the proposed labeling is neither false nor misleading, § 360e(d)(l)(A).
After completing its review, the FDA may grant or deny premarket approval. § 360e(d). It may also condition approval on adherence to performance standards, 21 CFR § 861.1(b)(3), restrictions upon sale or distribution, or compliance with other requirements, §814.82. The agency is also free to impose device-specific restrictions by regulation. § 360j(e)(l).
If the FDA is unable to approve a new device in its proposed form, it may send an “approvable letter” indicating that the device could be approved if the applicant submitted specified information or agreed to certain conditions or restrictions. 21 CFR § 814.44(e). Alternatively, the agency may send a “not approvable” letter, listing the grounds that justify denial and, where practical, measures that the applicant could undertake to make the device approvable. § 814.44(f).
Once a device has received premarket approval, the MDA forbids the manufacturer to make, without FDA permission, changes in design specifications, manufacturing processes, labeling, or any other attribute, that would affect safety or effectiveness. § 360e(d)(6)(A)(i). If the applicant wishes to make such a change, it must submit, and the FDA must approve, an application for supplemental premarket approval, to be evaluated under largely the same criteria as an initial application. § 360e(d)(6); 21 CFR § 814.39(c).
After premarket approval, the devices are subject to reporting requirements. § 360i. These include the obligation to inform the FDA of new clinical investigations or scientific studies concerning the device which the applicant knows of or reasonably should know of, 21 CFR § 814.84(b)(2), and to report incidents in which the device may have caused or contributed to death or serious injury, or malfunctioned in a manner that would likely cause or contribute to death or serious injury if it recurred, § 803.50(a). The FDA has the power to withdraw premarket approval based on newly reported data or existing information and must withdraw approval if it determines that a device is unsafe or ineffective under the conditions in its labeling. § 360e(e)(l); see also § 360h(e) (recall authority).
B
Except as otherwise indicated, the facts set forth in this section appear in the opinion of the Court of Appeals. The device at issue is an Evergreen Balloon Catheter marketed by defendant-respondent Medtronic, Inc. It is a Class III device that received premarket approval from the FDA in 1994; changes to its label received supplemental approvals in 1995 and 1996.
Charles Riegel underwent coronary angioplasty in 1996, shortly after suffering a myocardial infarction. App. to Pet. for Cert. 56a. His right coronary artery was diffusely diseased and heavily calcified. Riegel’s doctor inserted the Evergreen Balloon Catheter into his patient’s coronary artery in an attempt to dilate the artery, although the device’s labeling stated that use was contraindicated for patients with diffuse or calcified stenoses. The label also warned that the catheter should not be inflated beyond its rated burst pressure of eight atmospheres. Riegel’s doctor inflated the catheter five times, to a pressure of 10 atmospheres; on its fifth inflation, the catheter ruptured. Complaint 3. Riegel developed a heart block; was placed on life support, and underwent emergency coronary bypass surgery.
Riegel and his wife Donna brought this lawsuit in April 1999, in the United States District Court for the Northern District of New York. Their complaint alleged that Medtronic’s catheter was designed, labeled, and manufactured in a manner that violated New York common law, and that these defects caused Riegel to suffer severe and permanent injuries. The complaint raised a number of common-law claims. The District Court held that the MDA pre-empted Riegel’s claims of strict liability; breach of implied warranty; and negligence in the design, testing, inspection, distribution, labeling, marketing, and sale of the catheter. App. to
Pet. for Cert. 68a; Complaint 3-4. It also held that the MDA pre-empted a negligent manufacturing claim insofar as it was not premised on the theory that Medtronic violated federal law. App. to Pet. for Cert. 71a. Finally, the court concluded that the MDA pre-empted Donna Riegel’s claim for loss of consortium to the extent it was derivative of the pre-empted claims. Id., at 68a; see also id., at 75a.
The United States Court of Appeals for the Second Circuit affirmed these dismissals. 451 F. 3d 104 (2006). The court concluded that Medtronic was “clearly subject to the federal, device-specific requirement of adhering to the standards contained in its individual, federally approved” premarket approval application. Id., at 118. The Riegels’ claims were pre-empted because they “would, if successful, impose state requirements that differed from, or added to,” the device-specific federal requirements. Id., at 121. We granted certiorari. 551 U. S. 1144 (2007).
II
Since the MDA expressly pre-empts only state requirements “different from, or in addition to, any requirement applicable ... to the device” under federal law, § 360k(a)(l), we must determine whether the Federal Government has established requirements applicable to Medtronic’s catheter. If so, we must then determine whether the Riegels’ common-law claims are based upon New York requirements with respect to the device that are “different from, or in addition to,” the federal ones, and that relate to safety and effectiveness. § 360k(a).
We turn to the first question. In Lohr, a majority of this Court interpreted the MDA’s pre-emption provision in a manner “substantially informed” by the FDA regulation set forth at 21 CFR § 808.1(d). 518 U. S., at 495; see also id., at 500-501. That regulation says that state requirements are pre-empted “only when the Food and Drug Administration has established specific counterpart regulations or there are other specific requirements applicable to a particular device . . . .” 21 CFR § 808.1(d). Informed by the regulation, we concluded that federal manufacturing and labeling requirements applicable across the board to almost all medical devices did not pre-empt the common-law claims of negligence and strict liability at issue in Lohr. The federal requirements, we said, were not requirements specific to the device in question — they reflected “entirely generic concerns about device regulation generally.” 518 U. S., at 501. While we disclaimed a conclusion that general federal requirements could never pre-empt, or general state duties never be pre-empted, we held that no pre-emption occurred in the case at hand based on a careful comparison between the state and federal duties at issue. Id., at 500-501.
Even though substantial-equivalence review under § 510(k) is device specific, Lohr also rejected the manufacturer’s contention that § 510(k) approval imposed device-specific “requirements.” We regarded the fact that products entering the market through § 510(k) may be marketed only so long as they remain substantial equivalents of the relevant pre-1976 devices as a qualification for an exemption rather than a requirement. Id., at 493-494; see also id., at 513 (O’Connor, J., concurring in part and dissenting in part).
Premarket approval, in contrast, imposes “requirements” under the MDA as we interpreted it in Lohr. Unlike general labeling duties, premarket approval is specific to individual devices. And it is in no sense an exemption from federal safety review — it is federal safety review. Thus, the attributes that Lohr found lacking in §510(k) review are present here. While §510(k) is “‘focused on equivalence, not safety,’” id., at 493 (opinion of the Court), premarket approval is focused on safety, not equivalence. While devices that enter the market through §510(k) have “never been formally reviewed under the MDA for safety or efficacy,” ibid., the FDA may grant premarket approval only after it determines that a device offers a reasonable assurance of safety and effectiveness, § 360e(d). And while the FDA does not “‘require’” that a device allowed to enter the market as a substantial equivalent “take any particular form for any particular reason,” 518 U. S., at 493, the FDA requires a device that has received premarket approval to be made with almost no deviations from the specifications in its approval application, for the reason that the FDA has determined that the approved form provides a reasonable assurance of safety and effectiveness.
HI
We turn, then, to the second question: whether the Riegels’ common-law claims rely upon “any requirement” of New York law applicable to the catheter that is “different from, or in addition to,” federal requirements and that “relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device.” § 360k(a). Safety and effectiveness are the very subjects of the Riegels’ common-law claims, so the critical issue is whether New York’s tort duties constitute “requirements” under the MDA.
A
In Lohr, five Justices concluded that common-law causes of action for negligence and strict liability do impose “requirement[s]” and would be pre-empted by federal requirements specific to a medical device. See 518 U. S., at 512 (opinion of O’Connor, J., joined by Rehnquist, C. J., and Scalia and Thomas, JJ.); id., at 503-505 (Breyer, J., concurring in part and concurring in judgment). We adhere to that view. In interpreting two other statutes we have likewise held that a provision pre-empting state “requirements” pre-empted common-law duties. Bates v. Dow Agrosciences LLC, 544 U. S. 431 (2005), found common-law actions to be pre-empted by a provision of the Federal Insecticide, Fungicide, and Rodenticide Act that said certain States “ ‘shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.’ ” Id., at 443 (discussing 7 U. S, C. § 136v(b); emphasis added). Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992), held common-law actions preempted by a provision of the Public Health Cigarette Smoking Act of 1969, 15 U. S. C. § 1334(b), which said that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of aiiy cigarettes” whose packages were labeled in accordance with federal law. See 505 U. S., at 523 (plurality opinion); id., at 548-549 (Scalia, J., concurring in judgment in part and dissenting in part).
Congress is entitled to know what meaning this Court will assign to terms regularly used in its enactments. Absent other indication, reference to a State’s “requirements” includes its common-law duties. As the plurality opinion said in Cipollone, common-law liability is “premised on the existence of a legal duty,” and a tort judgment therefore establishes that the defendant has violated a state-law obligation. Id., at 522. And while the common-law remedy is limited to damages, a liability award “ ‘can be, indeed is designed to be, a potent method of governing conduct and controlling policy.’” Id., at 521.
In the present case, there is nothing to contradict this normal meaning. To the contrary, in the context of this legislation excluding common-law duties from the scope of preemption would make little sense. State tort law that requires a manufacturer’s catheters to be safer, but hence less effective, than the model the FDA has approved disrupts the federal scheme no less than state regulatory law to the same effect. Indeed, one would think that tort law, applied by juries under a negligence or strict-liability standard, is less deserving of preservation. A state statute, or a regulation adopted by a state agency, could at least be expected to apply cost-benefit analysis similar to that applied by the experts at the FDA: How many more lives will be saved by a device which, along with its greater effectiveness, brings a greater risk of harm? A jury, on the other hand, sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court. As Justice Breyer explained in Lohr, it is implausible that the MDA was meant to “grant greater power (to set state standards ‘different from, or in addition to,’ federal standards) to a single state jury than to state officials acting through state administrative or legislative lawmaking processes.” 518 U. S., at 504. That perverse distinction is not required or even suggested by the broad language Congress chose in the MDA, and we will not turn somersaults to create it.
B
The dissent would narrow the pre-emptive scope of the term “requirement” on the grounds that it is “difficult to believe that Congress would, without comment, remove all means of judicial recourse” for consumers injured by FDA-approved devices. Post, at 337 (opinion of Ginsburg, J.) (internal quotation marks omitted). But, as we have explained, this is exactly what a pre-emption clause for medical devices does by its terms. The operation of a law enacted by Congress need not be seconded by a committee report on pain of judicial nullification. See, e. g., Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992). It is not our job to speculate upon congressional motives. If we were to do so, however, the only indication available — the text of the statute — suggests that the solicitude for those injured by FDA-approved devices, which the dissent finds controlling, was overcome in Congress’s estimation by solicitude for those who would suffer without new medical devices if juries were allowed to apply the tort law of 50 States to all innovations.
In the case before us, the FDA has supported the position taken by our opinion with regard to the meaning of the statute. We have found it unnecessary to rely upon that agency view because we think the statute itself speaks clearly to the point at issue. If, however, we had found the statute ambiguous and had accorded the agency’s current position deference, the dissent is correct, see post, at 338, n. 8, that— inasmuch as mere Skidmore deference would seemingly be at issue — the degree of deference might be reduced by the fact that the agency’s earlier position was different. See Skidmore v. Swift & Co., 323 U. S. 134 (1944); United States v. Mead Corp., 533 U. S. 218 (2001); Good Samaritan Hospital v. Shalala, 508 U. S. 402, 417 (1993). But of course the agency’s earlier position (which the dissent describes at some length, post, at 337-338, and finds preferable) is even more compromised, indeed deprived of all claim to deference, by the fact that it is no longer the agency’s position.
The dissent also describes at great length the experience under the FDCA with respect to drugs and food and color additives. Post, at 339-342. Two points render the conclusion the dissent seeks to draw from that experience — that the pre-emption clause permits tort suits — unreliable. (1) It has not been established (as the dissent assumes) that no tort lawsuits are pre-empted by drug or additive approval under the FDCA. (2) If, as the dissent believes, the pre-emption clause permits tort lawsuits for medical devices just as they are (by hypothesis) permitted for drugs and additives; and if, as the dissent believes, Congress wanted the two regimes to be alike; Congress could have applied the pre-emption clause to the entire FDCA. It did not do so, but instead wrote a pre-emption clause that applies only to medical devices.
C
The Riegels contend that the duties underlying negligence, strict-liability, and implied-warranty claims are not preempted even if they impose “ ‘requirements,’ ” because general common-law duties are not requirements maintained “‘with respect to devices.’” Brief for Petitioner 34-36. Again, a majority of this Court suggested otherwise in Lohr. See 518 U. S., at 504-505 (opinion of Breyer, J.); id., at 514 (opinion of O’Connor, J., joined by Rehnquist, C. J., and Scalia and Thomas, JJ.). And with good reason. The language of the statute does not bear the Riegels’ reading. The MDA provides that no State “may establish or continue in effect with respect to a device . . . any requirement” relating to safety or effectiveness that is different from, or in addition to, federal requirements. § 360k(a) (emphasis added). The Riegels’ suit depends upon New York’s “continu[ing] in effect” general tort duties “with respect to” Medtronic’s catheter. Nothing in the statutory text suggests that the pre-empted state requirement must apply only to the relevant device, or only to medical devices and not to all products and all actions in general.
The Riegels’ argument to the contrary rests on the text of an FDA regulation which states that the MDA’s pre-emption clause does not extend to certain duties, including “[s]tate or local requirements of general applicability where the purpose of the requirement relates either to other products in addition to devices (e. g., requirements such as general electrical codes, and the Uniform Commercial Code (warranty of fitness)), or to unfair trade practices in which the requirements are not limited to devices.” 21 CFR § 808.1(d)(1). Even assuming that this regulation could play a role in defining the MDA’s pre-emptive scope, it does not provide unambiguous support for the Riegels’ position. The agency’s reading of its own rule is entitled to substantial deference, see Auer v. Robbins, 519 U. S. 452, 461 (1997), and the FDA’s view put forward in this case is that the regulation does not refer to general tort duties of care, such as those underlying the claims in this case that a device was designed, labeled, or manufactured in an unsafe or ineffective manner, Brief for United States as Amicus Curiae 27-28. That is so, according to the FDA, because the regulation excludes from pre-emption requirements that relate only incidentally to medical devices, but not other requirements. General tort duties of care, unlike fire codes or restrictions on trade practices, “directly regulate” the device itself, including its design. Id., at 28. We find the agency’s explanation less than compelling, since the same could be said of general requirements imposed by electrical codes, the Uniform Commercial Code, or unfair-trade-practice law, which the regulation specifically excludes from pre-emption.
Other portions of 21 CFR § 808.1, however, support the agency’s view that § 808.1(d)(1) has no application to this case (though still failing to explain why electrical codes, the Uniform Commercial Code, or unfair-trade-practice requirements are different). Section 808.1(b) states that the MDA sets forth a “general rule” pre-empting state duties “having the force and effect of law (whether established by statute, ordinance, regulation, or court decision) . . . .” (Emphasis added.) This sentence is far more comprehensible under the FDA’s view that § 808.1(d)(1) has no application here than under the Riegels’ view. We are aware of no duties established by court decision other than common-law duties, and we are aware of no common-law duties that relate solely to medical devices.
The Riegels’ reading is also in tension with the regulation’s statement that adulteration and misbranding claims are pre-empted when they “ha[ve] the effect of establishing a substantive requirement for a specific device, e. g., a specific labeling requirement” that is “different from, or in addition to,” a federal requirement. § 808.1(d)(6)(h). Surely this means that the MDA would pre-empt a jury determination that the FDA-approved labeling for a pacemaker violated a state common-law requirement for additional warnings. The Riegels’ reading of § 808.1(d)(1), however, would allow a claim for tortious mislabeling to escape pre-emption so long as such a claim could also be brought against objects other than medical devices.
All in all, we think that § 808.1(d)(1) can add nothing to our analysis but confusion. Neither accepting nor rejecting the proposition that this regulation can properly be consulted to determine the statute’s meaning; and neither accepting nor rejecting the FDA’s distinction between general requirements that directly regulate and those that regulate only incidentally; the regulation fails to alter our interpretation of the text insofar as the outcome of this case is concerned.
IV
State requirements are pre-empted under the MDA only to the extent that they are “different from, or in addition to” the requirements imposed by federal law. § 360k(a)(l). Thus, § 360k does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations; the state duties in such a case “parallel,” rather than add to, federal requirements. Lohr, 518 U. S., at 495; see also id., at 513 (O’Connor, J., concurring in part and dissenting in part). The District Court in this case recognized that parallel claims would not be pre-empted, see App. to Pet. for Cert. 70a-71a, but it interpreted the claims here to assert that Medtronic’s device violated state tort law notwithstanding compliance with the relevant federal requirements, see id., at 68a. Although the Riegels now argue that their lawsuit raises parallel claims, they made no such contention in their briefs before the Second Circuit, nor did they raise this argument in their petition for certiorari. We decline to address that argument in the first instance here.
For the foregoing reasons, the judgment of the Court of Appeals is
Affirmed.
Unqualified § 360 et seq. numbers hereinafter refer to sections of 21 U. S. C.
The District Court later granted summary judgment to Medtronic on those claims of Riegel it had found not pre-empted, viz., that Medtronic breached an express warranty and was negligent in manufacturing because it did not comply with federal standards. App. to Pet. for Cert. 90a. It consequently granted summary judgment as well on Donna Riegel’s derivative consortium claim. Ibid. The Court of Appeals affirmed these determinations, and they are not before us.
Charles Riegel having died, Donna Riegel is now petitioner on her own behalf and as administrator of her husband’s estate. Post, p. 804. For simplicity’s sake, the terminology of our opinion draws no -distinction between Charles Riegel and the Estate of Charles Riegel and refers to the claims as belonging to the Riegels.
The Riegels point to § 360k(b), which authorizes the FDA to exempt state “requirements” from pre-emption under circumstances that would rarely be met for common-law duties. But a law that permits an agency to exempt certain “requirements” from pre-emption does not suggest that no other “requirements” exist. The Riegels also invoke § 360h(d), which provides that compliance with certain FDA orders “shall not relieve any person from liability under Federal or State law.” This indicates that some state-law claims are not pre-empted, as we held in Lohr. But it could not possibly mean that all state-law claims are not pre-empted, since that would deprive the MDA pre-emption clause of all content. And it provides no guidance as to which state-law claims are pre-empted and which are not.
Contrary to Justice Stevens’ contention, post, at 331 (opinion concurring in part and concurring in judgment), we do not “advanc[e]” this argument. We merely suggest that if one were to speculate upon congressional purposes, the best evidence for that would be found in the statute.
The opinions joined by these five Justices dispose of the Riegels’. assertion that Lohr held common-law duties were too general to qualify as duties “with respect to a device.” The majority opinion in Lohr also disavowed this conclusion, for it stated that the Court did “not believe that [the MDA’s] statutory and regulatory language necessarily precludes . . . ‘general’ state requirements from ever being pre-empted ....” 518 U. S., at 500.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
AMERICAN AIR TRANSPORT, Inc. v. CIVIL AERONAUTICS BOARD.
No. 11575.
United States Court of Appeals District of Columbia Circuit.
Argued Doc. 19,1952.
Decided March 5, 1953.
Petition for Rehearing Denied April 15, 1953.
Mr. Albert F. Beitel, Washington, D. G, with whom Messrs. George M. Morris and John H. Pratt, Washington, D. G, were on the brief, for petitioner.
Mr. John H. Wanner, Associate Gen. Counsel, Civil Aeronautics Board, Washington, D. G, with whom Messrs. Emory T. Nunneley, Jr., Gen. Counsel, Civil Aeronautics Board, and O. D. Ozment, Atty., Civil Aeronautics Board, Washington, D. G, were on the brief, for respondent. Mr. Charles H. Weston, Chief, Appellate Section of the Antitrust Division, Department of Justice, Washington, D. G, entered an appearance for respondent.
Before EDGERTON, PRETTYMAN and BAZELON, Circuit Judges.
BAZELON, Circuit Judge.
. Petitioner was authorized to operate as a large irregular air carrier by a Letter of Registration issued under Part 291.17 (formerly 292.1(d)) of the Civil Aeronautics Board’s Economic Regulations. It seeks review of two Board orders — one suspending and the other revoking that authorization. Since we affirm, only the order of revocation requires discussion.
The Board acted under Part 291.20 which provides that Letters of Registration “shall be subject to revocation * *' * for knowing and willful violation of any provisions of the act or of any order, rule, or regulation * * It found that petitioner “knowingly, willfully, and flagrantly violated sections 401(a) and 1005(e)” of the Civil Aeronautics Act by conducting regular air operations in violation of
(1) Part 291 of the Regulations which authorizes irregular carriers to provide only infrequent services in a non-uniform pattern of operations; and
(2) a Board order previously entered against it to comply with Part 291 and to cease and desist from regular services. Part 291 exempts large irregular air carriers from compliance with various economic provisions applicable to certificated carriers authorized under § 401 to engage in regularly scheduled operations. “Irregular” air carriers offering regular services are therefore held to be in violation of the certification requirement of § 401. And § 1005(e), which the revocation proceedings were designed to implement, makes it the duty of every person subject to the Act “to observe and comply with any order, rule, regulation, or certificate issued by the Board * * * so long as the same shall remain in effect.”
Petitioner urges that the revocation order is invalid because (1) Part 291 does not apply to its operations, and (2) the cease and desist order is not res judicata against it. The contrary view we take of the cease and desist order is dis-positive of this appeal since that order requires compliance with Part 291.
The cease and desist order, entered more than two years prior to the orders under review, was based upon a finding that petitioner’s two round-trip flights per week between New York and San Juan, exceeded “the degree of regularity permitted by Part 292.1” (now Part 291.1). The Board ordered petitioner to cease air transportation unless it complied with Part 291, and specifically proscribed the operation of aircraft “[r]egularlv or with a reasonable degree of regularity [t. e.j] * * * by the operation of a single flight per week on the same day of each week between the same two points, or * * * by the recurrence of operations of two round-trip-flights, or flights varying from two to three or more such flights, between any same two points each week in succeeding weeks, without there intervening other weeks or approximately similar periods at irregular but frequent intervals during which no such flights are operated so as thereby to result in appreciable definite breaks in service * *
We will not go behind that order on this appeal. Petitioner is bound by its failure to invoke judicial review either within the sixty clays provided by the Act or by requesting leave of court thereafter. We recognize that there may be circumstances under which the application of the common law doctrine of res judicata to administrative determinations may be relaxed. But here our attention has not been drawn to any such circumstances. Thus we hold that the cease and desist order is res judicata and petitioner’s operations are accordingly governed by Part 291.
But even if we were to go behind the cease and desist order for the purpose of considering petitioner’s objections to Part 291, the result would be the same. Petitioner claims that regulation inapplicable because certain conditions therein were not in existence when it commenced operations early in June 1946. At that time, a 1938 regulation was in effect. It defined an operation as non-scheduled (later designated “irregular”), “if the air carrier does not hold out to the public by advertisement or otherwise that it will operate one or more airplanes between any designated points regularly or with a reasonable degree of regularity * * Effective June IS, 1946, the Board amended that regulation to read, as Part 291 does now, that an operation is non-scheduled if the air carrier does not “hold out to the public expressly or by a course of conduct that it operates * * * regularly or with a reasonable degree of regularity * * *.” We find no merit in the contention that the 1946 phrase “by a course of conduct” imposes different limitations on petitioner’s operations than the 1938 phrase “by advertisement or otherwise.” Moreover, the 1938 regulation was to remain in force only “[ujntil the Authority [the Board] shall adopt further rules, regulations or orders with respect to such matter * * *.” And since Part 291 and the intervening regulations embodied therein constitute an adoption by the Board of further regulations with respect to such carriers, petitioner would on that account alone be subject to Part 291.
All that remains then is to determine whether there is substantial evidence in the record as a whole to support the Board’s finding that petitioner has willfully violated Part 291 and the cease and desist order. Clearly, there is. Following entry of the cease and desist order, petitioner increased rather than decreased the regularity of its service. To cite merely one example, it expanded operations from an average of 2 flights per week between New York and San Juan, Puerto Rico for some 52 weeks to 4 flights per week between Miami and Newark for 56 consecutive weeks.
■[4,5] Equally without merit are other objections to the revocation order. One objection is that there was a denial of due process in the Board’s failure to schedule a hearing on petitioner’s long pending application for certification under § 401. That objection does not bear on the violations involved here, and the remedy, if any, is not available on this appeal. Petitioner’s further objection that § 1007(a) of the Act “places the enforcement of orders and regulations squarely in the district court” is not in point. Here the Board sought to revoke an operating authority for violations of its order and regulations, not “to enforce obedience thereto * * *.»
The orders under review are
Affirmed.
. 14 Code Fed. Regs. § 292 (1949), § 291 (Cum.Supp. 1951).
. Both, orders have been stayed pending review.
. 14 Code Fed. Regs. § 291.20 (Cum.Supp. 1951); see Air Transport Associates, Inc. v. Civil Aeronautics Board, 1952, 91 U.S.App.D.C. 147, 199 F.2d 181, certiorari denied, 1953, 344 U.S. 922, 73 S.Ct. 386.
. 52 Stat. 987, 1024 (1938), as amended, 49 U.S.C.A. §§ 481(a), 645(e) (1946).
. Part 291.1 provides in pertinent part:
“No air carrier shall be deemed to be an irregular air carrier unless the air transportation services offered and performed by it are of such infrequency as to preclude an implication of a uniform pattern or normal consistency of operation * * *4” 14 Oode Fed. Regs. (Cum. Supp. 1951).
. Civil Aeronautics Board v. Modern Air Transport, Inc., 2 Cir., 1950, 179 F.2d 622, 625.
. C.A.B. Opinion and Order No. 6780, p. 15 (September 10, 1952).
. See note 4, supra.
. C.A.B. Opinion and Order No. E-3906, pp. 30, 36 (February 15, 1950).
. Id. at 37. The Board entered the order under the authority of § 1002(e) of the Act which provides: “If the Board finds, after notice and hearing, in any investigation instituted upon complaint or upon its own initiative, that any person has failed to comply with any provisions of this chapter or any requirement established pursuant thereto, the Board shall issue an appropriate order to compel such person to comply therewith.” 52 Stat. 3018 (1938), as amended, 49 U.S.C.A. § 642(c).
. 52 Stat. 1024 (1938), as amended, 49 U.S.C.A. § 648(a) (3946) provides in pertinent part: ‘Any order, affirmative or negative, issued by the Board under this chapter S: * * shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition, filed within siwfy days after the entry of such order, by any person disclosing a substantial interest in such order. After the expiration of said sixty days a petition may be filed only by leave of court upon a showing of reasonable grounds for failure to file the petition theretofore.” (Emphasis supplied.)
. For a discussion of res judicata and the administrative process, see Davis, Administrative Law 563-613 (1953).
. Federal Trade Commission v. Morton Salt Co.. 1948, 334 U.S. 37, 54, 68 S.Ct. 822, 92 L.Ed. 1196; Aiken v. Cogswell, 91 U.S.App.D.C. 339, 201 F.2d 705; United States v. Willard Tablet Co., 7 Cir., 1944, 141 F.2d 141, 143, 152 A.L.R. 1194; Plumy v. United States, 9 Cir., 1942, 126 F.2d 601, 603, certiorari denied, 1942, 317 U.S. 637, 63 S.Ct. 28, 87 L.Ed. 513.
. C.A.B. Reg. 400-1, as amended, December 7, 1938 (emphasis supplied).
. See note 1, supra (emphasis supplied).
. See note 14, supra.
. See note 4, supra. Petitioner’s application was filed on April 4, 1949, following commencement of cease and desist order proceedings but prior to the entrance of the order in February 1950.
. 52 Stat. 1025 (1938), as amended, 49 U.S.C.A. § 647(a) (1946).
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_respondent
|
079
|
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.
MARSH, SECRETARY OF THE ARMY, et al. v. OREGON NATURAL RESOURCES COUNCIL et al.
No. 87-1704.
Argued January 9, 1989
Decided May 1, 1989
Stevens, J., delivered the opinion for a unanimous Court.
Solicitor General Fried argued the cause for petitioners. With him on the briefs were Assistant Attorney General Marzulla, Deputy Solicitor General Wallace, Jeffrey P. Min-ear, Peter R. Steenland, Jr., and Vicki L. Plant.
David A. Bricklin argued the cause for respondents. On the brief were Neil S. Kagan and Michael D. Axline.
Briefs of amici curiae urging reversal were filed for the Institute of Law and Public Health Protection by Steven R. Perles and Scott C. Whitney; and for the Northwest Forest Resource Council et al. by Mark C. Rutzick and Douglas C. Blomgren.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, N. Gregory Taylor and Theodora Berger, Assistant Attorneys General, and Clifford L. Rechtschaffen and Mary Gray Holt, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Don Siegelman of Alabama, Grace Berg Schaible of Alaska, Duane Woodard of Colorado, Jim Jones of Idaho, Neil F. Hartigan of Illinois, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, Frederick J. Coioan of Kentucky, James E. Tierney of Maine, James J. Shannon of Massachusetts, Mike Moore of Mississippi, William L. Webster of Missouri, Hubert H. Humphrey III of Minnesota, Mike Greely of Montana, Robert M. Spire of Nebraska, Brian McKay of Nevada, Stephen E. Merrill of New Hampshire, Cary Edwards of New Jersey, Robert Abrams of New York, Lacy H. Thornburg of North Carolina, Robert H. Henry of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, T. Travis Medlock of South Carolina, Charles W. Burson of Tennessee, Jim Mattox of Texas, Jeffrey Amestoy of Vermont, Mary Sue Terry of Virginia, and Charles G. Brown of West Virginia; for the Environmental Defense Fund et al. by Victor M. Sher, Todd D. True, and Tom Lustig; and for the International Association of Fish and Wildlife Agencies by Paul A. Lenzini.
Briefs of amici curiae were filed for the Center for Enviromental Education by Nicholas C. Yost and William A. Butler; and for the Pacific Legal Foundation by Ronald A. Zumbrun and Robin L. Rivett.
Justice Stevens
delivered the opinion of the Court.
This case is a companion to Robertson v. Methow Valley Citizens Council, ante, p. 332. It arises out of a controversial decision to construct a dam at Elk Creek in the Rogue River Basin in southwest Oregon. In addition to the question whether an Environmental Impact Statement (EIS) prepared pursuant to the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. §4321 et seq., must contain a complete mitigation plan and a “worst case analysis,” which we answered in Robertson, it presents the question whether information developed after the completion of the EIS requires that a supplemental EIS be prepared before construction of the dam may continue.
I
In the 1930’s in response to recurring floods in the Rogue River Basin, federal and state agencies began planning a major project to control the water supply in the Basin. See, e. g., ch. 346, 49 Stat. 439. In 1961 a multiagency study recommended the construction of three large dams: the Lost Creek Dam on the Rogue River, the Applegate Dam on the Applegate River, and the Elk Creek Dam on the Elk Creek near its confluence with the Rogue River. See H. R. Doc. No. 566, 87th Cong., 2d Sess., 7-89 (1962). The following year, Congress authorized the Army Corps of Engineers (Corps) to construct the project in accordance with the recommendations of the 1961 study. See Flood Control Act of 1962, Pub. L. 87-874, §203, 76 Stat. 1192-1193. The Lost Creek Dam was completed in 1977, and the Applegate Dam was completed in 1981.
Plans for the Elk Creek Dam describe a 238-foot-high concrete structure that will control the run-off from 132 square miles of the 135-square-mile Elk Creek watershed. When full, the artificial lake behind the dam will cover 1,290 acres of land, will have an 18-mile shoreline, and will hold 101,000 acre-feet of water. The dam will cost approximately $100 million to construct and will produce annual benefits of almost $5 million. It will be operated in coordination with the nearby Lost Creek Dam, where the control center for both dams will be located. Its “multiport” structure, which will permit discharge of water from any of five levels, makes it possible to regulate, within limits, the temperature, turbidity, and volume of the downstream flow. Although primarily designed to control flooding along the Rogue River, additional project goals include enhanced fishing, irrigation, and recreation.
In 1971, the Corps completed its EIS for the Elk Creek portion of the three-dam project and began development by acquiring 26,000 acres of land and relocating residents, a county road, and utilities. Acknowledging incomplete information, the EIS recommended that further studies concerning the project’s likely effect on turbidity be developed. The results of these studies were discussed in a draft supplemental EIS completed in 1975. However, at the request of the Governor of Oregon, further work on the project was suspended, and the supplemental EIS was not filed to make it possible to analyze the actual consequences of the construction of the Lost Creek Dam, which was nearing completion, before continuing with the Elk Creek project. Following that analysis and the receipt of a statement from the Governor that he was “extremely interested in pursuing construction of the Elk Creek Dam,” the Corps completed and released its final Environmental Impact Statement, Supplement No. 1 (FEISS), in December 1980.
Because the Rogue River is one of the Nation’s premier fishing grounds, the FEISS paid special heed to the effects the dam might have on water quality, fish production, and angling. In its chapter on the environmental effects of the proposed project, the FEISS explained that water quality studies were prepared in 1974 and in 1979 and that “[w]ater temperature and turbidity have received the most attention.” FEISS 33. Using computer simulation models, the 1974 study predicted that the Elk Creek Dam might, at times, increase the temperature of the Rogue River by one to two degrees Fahrenheit and its turbidity by one to three JTU’s. Ibid. The 1979 study took a second look at the potential effect of the Elk Creek Dam on turbidity and, by comparing the 1974 study’s predictions concerning the effects of the Lost Creek Dam with actual measurements taken after that dam became operational, it “increased technical confidence in the mathematical model predictions... and reinforced the conclusions of the 1974 [study].” Id., at 33-34. Based on these studies, the FEISS predicted that changes in the “turbidity regime” would not have any major effect on fish production, but that the combined effect of the Lost Creek and Elk Creek Dams on the turbidity of the Rogue River might, on occasion, impair fishing.
Other adverse effects described by the FEISS include the displacement of wildlife population — including 100 black-tailed deer and 17 elk — and the loss of forest land and vegetation resulting from the inundation of 1,290 acres of land with the creation of the artificial lake. Id., at 26, 38, 46. Most significantly, it is perfectly clear that the dam itself would interfere with the migration and spawning of a large number of anadromous fish, but this effect has been mitigated by the construction of a new hatchery. Id., at 35. Finally, the FEISS found that no endangered or threatened species would be affected by the project. Id., at 27.
On February 19, 1982, after reviewing the FEISS, the Corps’ Division Engineer made a formal decision to proceed with construction of the Elk Creek Dam, “subject to the approval of funds by the United States Congress.” App. to Pet. for Cert. 53a. In his decision, he identified the mitigation measures that had already been taken with respect to the loss of anadromous fish spawning habitat, as well as those that would “most likely” be taken to compensate for the loss of other wildlife habitat. Id., at 56a-57a. He concluded that the benefits that would be realized from the project “outweigh the economic and environmental costs” and that completion would serve “the overall public interest.” Id., at 58a. In August 1985, Congress appropriated the necessary funds. Act of Aug. 15, 1985, Pub. L. 99-88, 99 Stat. 314. The dam is now about one-third completed and the creek has been rechanneled through the dam.
II
In October 1985, four Oregon nonprofit corporations filed this action in the United States District Court for the District of Oregon seeking to enjoin construction of the Elk Creek Dam. Their principal claims were that the Corps violated NEPA by failing (1) to consider the cumulative effects of the three dams on the Rogue River Basin in a single EIS; (2) adequately to describe the environmental consequences of the project; (3) to include a “worst case analysis” of uncertain effects; and (4) to prepare a second supplemental EIS to review information developed after 1980.
After conducting a hearing on respondents’ motion for a preliminary injunction, the District Judge denied relief on each of the NEPA claims. 628 F. Supp. 1557 (1986). He first held that courts must employ a standard of “reasonableness” in reviewing an agency’s compliance with NEPA. Under this standard of review, the court must “ ‘make a pragmatic judgment whether the EIS’s form, content and preparation foster both informed decision-making and informed public participation.’” Id., at 1562 (quoting California v. Block, 690 F. 2d 753, 761 (CA9 1982)). Applying this standard, the District Judge concluded that the Corps had, in fact, taken a sufficiently “hard look” at the cumulative effects of the three dams and at the individual effects of the Elk Creek Dam. 628 F. Supp., at 1563-1565. He also con-eluded that a “worst case analysis” was not required because the Corps used state-of-the-art mathematical models, thus avoiding scientific uncertainty and the need to fill gaps in information with a worst case scenario. Id., at 1567. Finally, the District Court held that the Corps’ decision not to prepare a second supplemental EIS to address new information was “reasonable.”
The new information relied upon by respondents is found in two documents. The first, an internal memorandum prepared by two Oregon Department of Fish and Wildlife (ODFW) biologists based upon a draft ODFW study, suggested that the dam will adversely affect downstream fishing, and the second, a soil survey prepared by the United States Soil Conservation Service (SCS), contained information that might be taken to indicate greater downstream turbidity than did the FEISS. As to both documents, the District Judge concluded that the Corps acted reasonably in relying on the opinions of independent and Corps experts discounting the significance of the new information. Id., at 1567-1568. At the conclusion of his opinion, the District Judge directed that the motion for preliminary relief be consolidated with trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2), and thus denied respondents’ claim for a permanent injunction as well.
The Court of Appeals reversed. 832 F. 2d 1489 (CA9 1987). Applying the same “reasonableness” standard of review employed by the District Court, the Court of Appeals reached a contrary conclusion, holding that the Corps had not adequately evaluated the cumulative environmental impact of the entire project. Id., at 1497. Since the Corps did not seek review of that holding, we do not discuss it. The court also held that the FEISS was defective because it did not include a complete mitigation plan and because it did not contain a “worst case analysis.” Id., at 1493-1494, 1496-1497. These holdings were erroneous for the reasons stated in our opinion in Robertson v. Methow Valley Citizens Council, ante, p. 332, and will not be further discussed. With regard to the failure to prepare a second supplemental EIS, the Court of Appeals'concluded that the ODFW and SCS documents brought to light “significant new information” concerning turbidity, water temperature, and epizootic fish disease; that this information, although “not conclusive,” is “probably accurate;” and that the Corps’ experts failed to evaluate the new information with sufficient care. 832 F. 2d, at 1494-1496. The court thus concluded that a second supplemental EIS should have been prepared. Judge Wallace, writing in dissent, took issue with the majority’s analysis of the new information. In his view, it was reasonable for the Corps to have concluded, based on its own expert evaluation, that the information contained in the ODFW document was inaccurate, and that the information contained in the SCS document was insignificant. Id., at 1500 (opinion concurring in part and dissenting in part).
Ill
The subject of postdecision supplemental environmental impact statements is not expressly addressed in NEPA. Preparation of such statements, however, is at times necessary to satisfy the Act’s “action-forcing” purpose. NEPA does not work by mandating that agencies achieve particular substantive environmental results. Rather, NEPA promotes its sweeping commitment to “prevent or eliminate damage to the environment and biosphere” by focusing Government and public attention on the environmental effects of proposed agency action. 42 U. S. C. § 4321. By so focusing agency attention, NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct. See Robertson, ante, at 349. Similarly, the broad dissemination of information mandated by NEPA permits the public and other government agencies to react to the effects of a proposed action at a meaningful time. Ante, at 349-350. It would be incongruous with this approach to environmental protection, and with the Act’s manifest concern with preventing uninformed action, for the blinders to adverse environmental effects, once unequivocally removed, to be restored prior to the completion of agency action simply because the relevant proposal has received initial approval. As we explained in TVA v. Hill, 437 U. S. 153, 188, n. 34 (1978), although “it would make sense to hold NEPA inapplicable at some point in the life of a project, because the agency would no longer have a meaningful opportunity to weigh the benefits of the project versus the detrimental effects on the environment,” up to that point, “NEPA cases have generally required agencies to file environmental impact statements when the remaining governmental action would be environmentally ‘significant.’”
“(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” 83 Stat. 853, 42 U. S. C. § 4332.
This reading of the statute is supported by Council on Environmental Quality (CEQ) and Corps regulations, both of which make plain that at times supplementation is required. The CEQ regulations, which we have held are entitled to substantial deference, see Robertson, ante, at 355-356; Andrus v. Sierra Club, 442 U. S. 347, 358 (1979), impose a duty on all federal agencies to prepare supplements to either draft or final EIS’s if there “are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” Similarly, the Corps’ own NEPA implementing regulations require the preparation of a supplemental EIS if “new significant impact information, criteria or circumstances relevant to environmental considerations impact on the recommended plan or proposed action.”
The parties are in essential agreement concerning the standard that governs an agency’s decision whether to prepare a supplemental EIS. They agree that an agency should apply a “rule of reason,” and the cases they cite in support of this standard explicate this rule in the same basic terms. These cases make clear that an agency need not supplement an EIS every time new information comes to light after the EIS is finalized. To require otherwise would render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made. On the other hand, and as petitioners concede, NEPA does require that agencies take a “hard look” at the environmental effects of their planned action, even after a proposal has received initial approval. See Brief for Petitioners 36. Application of the “rule of reason” thus turns on the value of the new information to the still pending decisionmaking process. In this respect the decision whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance: If there remains “major Federal actio[n]” to occur, and if the new information is sufficient to show that the remaining action will “affec[t] the quality of the human environment” in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared. Cf. 42 U. S. C. § 4332(2)(C).
The parties disagree, however, on the standard that should be applied by a court that is asked to review the agency’s decision. Petitioners argue that the reviewing court need only decide whether the agency decision was “arbitrary and capricious,” whereas respondents argue that the reviewing court must make its own determination of reasonableness to ascertain whether the agency action complied with the law. In determining the proper standard of review, we look to § 10e of the Administrative Procedure Act (APA), 5 U. S. C. § 706, which empowers federal courts to “hold unlawful and set aside agency action, findings, and conclusions” if they fail to conform with any of six specified standards. We conclude that review of the narrow question before us whether the Corps’ determination that the FEISS need not be supplemented should be set aside is controlled by the “arbitrary and capricious” standard of § 706(2)(A).
Respondents contend that the determination whether the new information suffices to establish a “significant” effect is either a question of law or, at a minimum, a question of ultimate fact and, as such, “deserves no deference” on review. Brief for Respondents 29. Apparently, respondents maintain that the question for review centers on the legal meaning of the term “significant” or, in the alternative, the predominantly legal question whether established and uncontested historical facts presented by the administrative record satisfy this standard. Characterizing the dispute in this manner, they posit that strict review is appropriate under the “in accordance with law” clause of §706(2)(A) or the “without observance of procedure required by law” provision of § 706 (2)(D). We disagree.
The question presented for review in this case is a classic example of a factual dispute the resolution of which implicates substantial agency expertise. Respondents’ claim that the Corps’ decision not to file a second supplemental EIS should be set aside primarily rests on the contentions that the new information undermines conclusions contained in the FEISS, that the conclusions contained in the ODFW memorandum and the SCS survey are accurate, and that the Corps’ expert review of the new information was incomplete, inconelusive, or inaccurate. The dispute thus does not turn on the meaning of the term “significant” or on an application of this legal standard to settled facts. Rather, resolution of this dispute involves primarily issues of fact. Because analysis of the relevant documents “requires a high level of technical expertise,” we must defer to “the informed discretion of the responsible federal agencies.” Kleppe v. Sierra Club, 427 U. S. 390, 412 (1976). See also Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U. S. 87, 103 (1983) (“When examining this kind of scientific determination... a reviewing court must generally be at its most deferential”). Under these circumstances, we cannot accept respondents’ supposition that review is of a legal question and that the Corps’ decision “deserves no deference.” Accordingly, as long as the Corps’ decision not to supplement the FEISS was not “arbitrary or capricious,” it should not be set aside.
As we observed in Citizens to Presene Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971), in making the factual inquiry concerning whether an agency decision was “arbitrary or capricious,” the reviewing court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” This inquiry must “be searching and careful,” but “the ultimate standard of review is a narrow one.” Ibid. When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive. On the other hand, in the context of reviewing a decision not to supplement an EIS, courts should not automatically defer to the agency’s express reliance on an interest in finality without carefully reviewing the record and satisfying themselves that the agency has made a reasoned decision based on its evaluation of the significance— or lack of significance — of the new information. A contrary approach would not simply render judicial review generally meaningless, but would be contrary to the demand that courts ensure that agency decisions are founded on a reasoned evaluation “of the relevant factors.”
> hH
Respondents’ argument that significant new information required the preparation of a second supplemental EIS rests on two written documents. The first of the documents is the so-called “Cramer Memorandum,” an intraoffice memorandum prepared on February 21, 1985, by two scientists employed by ODFW. See Cramer Memorandum 3a. The Cramer Memorandum, in turn, relied on a draft ODFW study describing the effects of the Lost Creek Dam on fish production. The second document is actually a series of maps prepared in 1982 by SCS to illustrate the composition of soil near the Elk Creek shoreline. The information was provided to the Corps for use in managing the project. Although respondents contend that the maps contained data relevant to a prediction of the dam’s impact on downstream turbidity, the maps do not purport to shed any light on that subject. Nor do they purport to discuss any conditions that had changed since the FEISS was completed in 1980. The Corps responded to the claim that these documents demonstrate the need for supplementation of the FEISS by preparing a formal Supplemental Information Report, dated January 10, 1986. See U. S. Army Corps of
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_lcdispositiondirection
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine 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
LOBER et al., EXECUTORS, v. UNITED STATES.
No. 30.
Argued October 16, 1953.
Decided November 9, 1953.
David Stock argued the cause and filed a brief for petitioners.
Charles K. Rice argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Holland, Ellis N. Slack, Lee A. Jackson, Marvin E. Frankel and Elizabeth B. Davis.
Mr. Justice Black
delivered the opinion of the Court.
This is an action for an estate tax refund brought by the executors of the estate of Morris Lober. In 1924 he signed an instrument conveying to himself as trustee money and stocks for the benefit of his young son. In 1929 he executed two other instruments, one for the benefit of a daughter, the other for a second son. The terms of these three instruments were the same. Lober was to handle the funds, invest and reinvest them as he deemed proper. He could accumulate and reinvest the income with the same freedom until his children reached twenty-one years of age. When twenty-one they were to be paid the accumulated income. Lober could hold the principal of each trust until the beneficiary reached twenty-five. In case he died his wife was to be trustee with the same broad powers Lober had conveyed to himself. The trusts were declared to be irrevocable, and as the case reaches us we may assume that the trust instruments gave Lober’s children a “vested interest” under state law, so that if they had died after creation of the trusts their interests would have passed to their estates. A crucial term of the trust instruments was that Lober could at any time he saw fit turn all or any part of the principal of the trusts over to his children. Thus he could at will reduce the principal or pay it all to the beneficiaries, thereby terminating any trusteeship over it.
Lober died in 1942. By that time the trust property was valued at more than $125,000. The Internal Revenue Commissioner treated this as Lober’s property and included it in his gross estate. That inclusion brought this lawsuit. The Commissioner relied on §811 (d)(2) of the Internal Revenue Code, 26 U. S. C. § 811 (1946 ed.). That section, so far as material here, required inclusion in a decedent’s gross estate of the value of all property that the decedent had previously transferred by trust “where the enjoyment thereof was subject at the date of his' death to any change through the exercise of a power ... to alter, amend, or revoke In Commissioner v. Holmes, 326 U. S. 480, we held that power to terminate was the equivalent of power to “alter, amend, or revoke” it, and we approved taxation of the Holmes estate on that basis. Relying on the Holmes case, the Court of Claims upheld inclusion of these trust properties in Lober’s estate. 124 Ct. Cl. 44, 108 F. Supp. 731. This was done despite the assumption that the trust conveyances gave the Lober children an indefeasible “vested interest” in the properties conveyed. The Fifth Circuit Court of Appeals had reached a contrary result where the circumstances were substantially the same, in Hays’ Estate v. Commissioner, 181 F. 2d 169, 172-174. Because of this conflict, we granted certiorari. 345 U. S. 969.
Petitioners stress a factual difference between this and the Holmes case. The Holmes trust instrument provided that if a beneficiary died before expiration of the trust his children succeeded to his interest, but if he died without children, his interest would pass to his brothers or their children. Thus the trustee had power to eliminate a contingency that might have prevented passage of a beneficiary’s interest to his heirs. Here we assume that upon death of the Lober beneficiaries their part in the trust estate would, under New York law, pass to their heirs. But we cannot agree that this difference should change the Holmes result.
We pointed out in the Holmes case that § 811 (d) (2) was more concerned with “present economic benefit” than with “technical vesting of title or estates.” And the Lober beneficiaries, like the Holmes beneficiaries, were granted no “present right to immediate enjoyment of either income or principal.” The trust instrument here gave none of Lober’s children full “enjoyment” of the trust property, whether it “vested” in them or not. To get this full enjoyment they had to wait until they reached the age of twenty-five unless their father sooner gave them the money and stocks by terminating the trust under the power of change he kept to the very date of his death. This father could have given property to his children without reserving in himself any power to change the terms as to the date his gift would be wholly effective, but he did not. What we said in the Holmes case fits this situation too: “A donor who keeps so strong a hold over the actual and immediate enjoyment of what he puts beyond his own power to retake has not divested himself of that degree of control which §811 (d)(2) requires in order to avoid the tax.” Commissioner v. Holmes, supra, at 487.
Affirmed.
Me. Justice Douglas and Mr. Justice Jackson dissent.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_caseorigin
|
046
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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.
BAKERY SALES DRIVERS LOCAL UNION NO. 33 et al. v. WAGSHAL, trading as WAGSHAL’S DELICATESSEN.
No. 225.
Argued December 17-18, 1947.
Decided March 15, 1948.
Herbert S. Thatcher argued the cause for petitioners. With him on the brief were J. Albert Woll and Jacqueline Wemple.
William E. Leahy argued the cause for respondent. With him on the brief were William J. Hughes, Jr. and Nicholas J. Chase.
Mr. Justice Frankfurter
delivered the opinion of the Court.
This is an action brought in a United States District Court to enjoin interference with a business, and the question is whether the complaint subjects that court to the limitations imposed by the Norris-LaGuardia Act upon its equity jurisdiction.
This is the substance of the complaint. Respondent owns a delicatessen store which sells food and serves meals. She obtained bread for the delicatessen store from Hinkle's bakery. Deliveries were made by a driver, an employee of Hinkle and a member of Local Union No. 33, one of the petitioners. The driver delivered the bread at noon, which inconvenienced the respondent, since the checking of deliveries at that hour interfered with the serving of lunches. Respondent “required” the driver to bring the bread at another hour. Shortly thereafter, Hinkle informed the respondent that it would no longer furnish her with bakery products. And so, respondent made arrangements with another bakery, which delivered at a more convenient hour.
Three weeks later, the petitioner Andre, president of the union, visited the delicatessen store and stated that the respondent owed the driver approximately $150 and requested immediate payment. Respondent replied that she had never had dealings with the driver, but had paid Hinkle directly by check, and would pay the bill in due course. Andre replied that the payment would have to be made to the driver in full; furthermore, that if the respondent did not cease carrying a certain non-union article of food he noticed on display, delivery of bread, milk, and other products necessary to the respondent’s business would be cut off. Shortly thereafter the respondent sent a check to Hinkle for the balance of her bill. It was returned by the union, with a letter signed by Andre asserting that the payment was owed to its member, the driver, and could not be accepted. The following day, the bakery which had been serving respondent after Hinkle had stopped doing so, ceased to deal with her, explaining that the union had threatened otherwise “to pull out all its drivers.” Through an effective boycott, the union kept the respondent from obtaining bread from other bakeries or retail stores. The delicatessen store was also picketed.
The complaint prayed for temporary and permanent injunctions against the boycott and other interference with respondent’s business, the payment of damages, and the usual catch-all relief. Petitioners moved to dismiss the action on the ground that the controversy as set forth in the complaint involved a “labor dispute” under the Norris-LaGuardia Act, 47 Stat. 70, 29 U. S. C. §§ 101 et seg. Respondent filed an “answer to motion to dismiss,” attached to which were affidavits, including one of Benjamin Wagshal, manager of the delicatessen store, elaborating the' incidents narrated in the complaint. Among other matters set forth, he stated that payment for bread purchased from Hinkle had always been made by check sent directly to Hinkle and was never made to a driver, and that neither the union nor any of its drivers had ever previously questioned this practice; that Andre had asserted by mail and at the delicatessen store that the check which the respondent had sent to Hinkle was $12.22 short of the amount owed; and that the non-union item on sale to which Andre had objected was not a subject of controversy but merely an excuse for Andre’s attempt, on his visit to the delicatessen store, to enforce his demands concerning the bill, and that in any event its sale had been discontinued.
The District Court granted an injunction pendente lite, restraining the petitioners from interfering with respondent’s business or preventing sale and delivery of bakery products to the respondent, by boycott and picketing. At the same time, it denied the petitioners’ motion to dismiss. Petitioners filed a notice of appeal to the Court of Appeals for the District of Columbia, and respondents moved to dismiss the appeal.
If this case does not involve a “labor dispute” under the Norris-LaGuardia Act, an appeal as of right could not be had in the Court of Appeals for the District of Columbia. 31 Stat. 1189, 1225, as amended, D. C. Code (1940) § 17-101. However, § 10 of the Norris-La-Guardia Act, 47 Stat. 70, 72, 29 U. S. C. § 110, provides for immediate review of an order granting or denying “any temporary injunction in a case involving or growing out of a labor dispute . ...” The Court of Appeals, one justice dissenting, held that this was not such a case, and dismissed the appeal. 161 F. 2d 380. Because of asserted conflict between this decision and prior decisions of this Court on the scope of “labor dispute” within the meaning of the Norris-LaGuardia Act, we granted certiorari. 332 U. S. 756.
A preliminary claim must be met, that the case has become moot. The short answer to the argument that the Labor Management Relations Act of 1947, 61 Stat. 136, 149, § 10 (h), has removed the limitations of the Norris-LaGuardia Act upon the power to issue injunctions against what are known as secondary boycotts, is that the law has been changed only where an injunction is sought by the National Labor Relations Board, not where proceedings are instituted by a private party. The claim of mootness is also based on an affidavit stating that after dismissal of the appeal by the Court of Appeals, the union lifted its boycott. Since the record does not show that a stay of the injunction was granted pending action in this Court, we must assume that the union’s action was merely obedience to the judgment now here for review. We therefore turn to the merits.
The petitioners attach significance to three incidents for their claim that a “labor dispute” is here involved.
1. The controversy over the hour of delivery. The petitioners claim that this was a dispute “concerning terms or conditions of [the driver’s] employment,” thereby raising a labor dispute, “whether or not the disputants stand in the proximate relation of employer and employee.” § 13 (c) of the Norris-LaGuardia Act. But the respondent had nothing to do with the working conditions of Hinkle’s employees, individually or collectively. Her only desire was to have the bread come at an hour suitable for her business, and she had no interest in what arrangements Hinkle made to satisfy that desire rather than run the risk of losing her trade — to have the bread delivered by the same driver at a different hour, or by another driver, by an independent contractor, or through some other resourceful contrivance. To hold that under such circumstances a failure of two businessmen to come to terms created a labor dispute merely because what one of them sought might have affected the work of a particular employee of the other, would be to turn almost every controversy between sellers and buyers over price, quantity, quality, delivery, payment, credit, or any other business transaction into a “labor dispute.” Cf. Columbia River Packers Assn. v. Hinton, 315 U. S. 143. Furthermore, on the basis of what we have before us, respondent’s disagreement with Hinkle over the delivery hour was a dead controversy, not involved in the subsequent dispute with the union, or in the boycott against which the injunction was directed.
2. The controversy over the bill. The petitioners regard both the question whether payment was to be made to the driver rather than to Hinkle, and the disagreement over the disputed sum of $12.22, as a matter concerning the driver’s wages, and therefore a condition of his employment. But, on the allegations now here, respondent had nothing to do with the payment of the driver’s wages. The delicatessen store was Hinkle’s customer. On the basis of the allegations to be considered, the driver would receive his pay whether or not respondent paid her bill. It is immaterial that the driver may have been the conduit for payment — as drivers who deliver packages normally are. The same is true as to the disputed item of $12.22. The mere fact that it is a labor union representative rather than a bill collector who, with or without the creditor’s consent, seeks to obtain payment of an obligation, does not transmute a business controversy into a Norris-LaGuardia “labor dispute.” Cf. Dorchy v. Kansas, 272 U. S. 306, 311.
3. The non-union item on sale in the delicatessen store. Sale by a merchant of non-union commodities is, no doubt, a traditional source of labor disputes within the scope of the Norris-LaGuardia Act. While the complaint itself did not indicate the history of this matter after Andre’s visit, the affidavit attached to the “answer to motion to dismiss” sets forth that it was not a bona fide bone of contention, but a mere pretext, and, further, that the respondent thereafter withdrew the item from sale. While the conclusion of the incident giving rise to a controversy may not necessarily terminate a labor dispute (cf. Hunt v. Crumboch, 325 U. S. 821), what is before us leaves no doubt that the subsequent boycott was addressed only to the question of payment of the bill. Petitioners suggest that since no injunction may issue in a case growing out of a labor dispute, except upon oral testimony, determination whether there is a labor dispute should not rest on affidavits. But in this case the affidavits were merely a gloss on the complaint and as such constituted an informal amendment. They serve here as allegations, not proof.
This case was decided on a motion to dismiss. All that was determined was that on the basis of the respondent’s claims, which the petitioners chose not to controvert, the Norris-LaGuardia Act did not apply. Since the only issue before the court below, and therefore before us, was the appealability of the order for an injunction pendente lite, which in turn depended on the applicability of the Norris-LaGuardia Act, other questions raised are not now open here.
Affirmed.
Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Murphy dissent. Mr. Justice Rutledge took no part in the consideration or decision of this case.
Section 13 of the Norris-LaGuardia Act, 47 Stat. 70, 73, 29 U. S. C. § 113, reads as follows:
“Sec. 13. When used in this Act, and for the purposes of this Act — (a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and one or more employers or associations of employers; or (3) between one or more employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a ‘labor dispute’ (as hereinafter defined) of ‘persons participating or interested’ therein (as hereinafter defined).
“(b) A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it, and if he or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any association composed in whole or in part of employers or employees engaged in such industry, trade, craft, or occupation.
“ (c) The term ‘labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.
“(d) The term 'court of the United States’ means any court of the United States whose jurisdiction has been or may be conferred or defined or limited by Act of Congress, including the courts of the District of Columbia.”
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_trialpro
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
FIDELITY & DEPOSIT CO. OF MARYLAND v. CITIZENS NAT. BANK OF WACO.
No. 8774.
Circuit Court of Appeals, Fifth Circuit.
Feb. 23, 1939.
HUTCHESON, Circuit Judge, dissenting.
For original opinion, see 100 F.2d 807.
Albert B. Hall, of Dallas, Tex., for appellant.
H. M. Richey, of Waco, Tex., for appellee.
Before SIBLEY and HUTCHESON, Circuit Judges, and DEAVER, District Judge.
PER CURIAM.
We recognize that when the Tax Collector took checks instead of money for taxes that the taxes were not thereby paid until the checks were honored. When he took such checks to this bank which was .also the County Depository he had a right to put those drawn on another bank in a special account for collection. We hold that when collection was made by the bank as the tax collector’s agent the tax covered by such a check stood paid, and the proceeds were known to the bank to be public funds which the Tax Collector was bound to place with the depository, and since they were already in its hands to the credit of the Tax Collector the bank could hold them only as depository. The Tax Collector cannot, as he sought to do, put in his collection account either cash or checks drawn on the depository bank itself. When such checks are presented and honored, or when cash is deposited, the funds being public money are, like the proceeds of collections from other banks, held as such by the depository. By the statute, it can pay the public funds out on the Tax Collector’s checks to no others than treasurers. It may be that there is no breach of depository duty in paying checks known to be for commissions, or other things for which the Tax Collector could pay out cash instead of putting it in the depository. And money mistakenly deposited might be restored. But in all these exceptional cases the facts justifying the payment must be shown, and are not to be assumed. The depository paying checks to others than treasurers must know and be prepared to prove its justification. If there is no justification shown, the depository stands as actively joining the Tax Collector in illegally paying out the public money violating the law under which it acts as depository. The special agreement between the Tax Collector and the bank that he should put not only foreign checks but all tax monies in a collection account to enable him to retain a checking control over it we hold to be illegal, plainly at variance with the depository’s legal duty, and rather aggravating than excusing the illegal payment of his checks to others than treasurers.
It may be that the bank has an ultimate recourse on the Tax Collector personally if he really got the benefit of the misappropriated funds. We do not think this cuts off the Tax Collector’s surety from subrogation to the State’s right against the depository. The depository, as we see it, would not have recourse on the Tax Collector’s surety if it had paid the State, because it participated actively in misapplying the public money. The surety, no doubt, in assuming liability as such, and in fixing the premium therefor, relied on the law which requires the Tax Collector at once to deposit his collections . in the depository, and prohibited them being checked out otherwise than to treasurers. If that law had been observed by the depository' the surety would not have suffered this loss.
Motion for rehearing denied.
HUTCHESON, Circuit Judge, dissents.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_casetyp1_7-3-6
|
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 - property disputes".
UNITED STATES v. LEE et al.
No. 1862.
Circuit Court of Appeals, Tenth Circuit.
Dec. 21, 1939.
Rehearing Denied Feb. 6, 1940.
Charles N. Champion, Asst. U. S. Atty., of Muskogee, Okl., and Norman McDonald, Atty., Department of Justice, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., Cleon A. Summers, U. S. Atty., of Muskogee, Okl., C. W. Leaphart, Sp. Asst, to Atty. Gen., Thomas Harris and Frederick W. Whiteside, Attys., Department of Justice, both of Washington, D. C., W. F. Semple, of Tulsa, Okl., A. H. Ferguson, of Durant, Okl., and Tom Finney, of Idabel, Okl., on the brief), for appellant.
H. A. Ledbetter and Guy H. Sigler, both of Ardmore, Okl. (H. E. Ledbetter and P. M. Jackson, both of Ardmore, Okl., on the brief), for appellees.
Before LEWIS, BRATTON, and HUXMAN, Circuit Judges.
BRATTON, Circuit Judge.
The appeal in this case presents for determination conflicting claims to certain land, and to the proceeds of royalties accruing under two oil and gas leases. Eliza Stechi, a full-blood enrolled Choctaw Indian, received a homestead allotment of land, a part of which was situated in Carter County, Oklahoma, and a surplus allotment, all of which was situated in that county. The allottee died intestate in 1918, seized and possessed of such land, and left as her sole heirs at law two children, Somner Stechi and Ledcie Stechi, both full-blood Indians of the Five Civilized Tribes, born after March 4, 1906. Somner Stechi died in January, 1919, at about four months of age. Ledcie Stechi, through her guardian, and others, executed two oil and gas leases. The first, executed in June, 1919, covered ten acres of the homestead allotment, situated in Carter County; and the second, executed in October, 1919, covered ten acres of the surplus allotment. Both leases were approved by the county court in Oklahoma having jurisdiction of the settlement of the estate of the allottee, and by the Secretary of the Interior; and they were placed of record. Skelly Oil Company subsequently acquired and still owns both of them. Oil and casinghead gas were developed on the leased premises, and The Carter Oil Company purchased substantial quantities thereof. Ledcie Stechi died in 1923, at the age of seven years, leaving as her sole heir at law her maternal grandmother, Nellie Stechi, a full-blood enrolled Choctaw Indian, and mother of the allottee. Three days after Ledcie Stechi died, Nellie Stechi entered into a written contract with T. H. DuBois and Robert E. Lee, attorneys, in which it was provided that she employed them irrevocably to represent her in establishing her rights in the estate of the allottee, and that their compensation for services should be forty per cent of whatever might be recovered in money, chattels, or lands. The contract was not approved by any court or by the Secretary of the Interior. It was recorded in Carter County. DuBois performed very little service under the contract and soon disclaimed any further interest in it. Lee represented Nellie Stechi in various proceedings respecting her interests in the estate for a period of about two years. He was then discharged, and she' was thereafter represented by other attorneys.
Nellie Stechi filed suit against DuBois and Lee in the District Court of Carter County for cancellation of the contract. By answer and cross petition, Lee sought to enforce and recover on the contract. At the trial he disclaimed any interest m the tract which constituted the surplus allotment, confining his contention to the land constituting the homestead allotment and the money arising therefrom as royalties. He recovered judgment for $30,791.80, representing forty per cent of the royalties which had accrued to January 1, 1928, under the lease on the homestead tract, an undivided forty per cent interest in the ten-acre tract out of the homestead allotment covered by the lease, together with forty per cent of the rents and royalties accruing after January 1, 1928, a forty per cent interest in the remainder of the homestead allotment, and a lien on the undivided sixty per cent of the homestead allotment to secure the money judgment. Nellie Stechi appealed to the Supreme Court of the state and died pending the appeal. The cause was revived in the names of her heirs, and the judgment was affirmed. Stechi v. Lee, 145 Okl. 41, 291 P. 50. The United States was not a party to the suit, but more than two years after it was instituted, Nellie Stechi caused notice of its pendency to be served on the Superintendent of the Five Civilized Tribes under section 3 of the Act of April 12, 1926, 44 Stat. 239, 240. Three days after the judgment of the district court was entered the United States filed in the cause a petition for leave to intervene and remove the cause to the United States Court for Eastern Oklahoma. A notation or informal order was entered in the records of the court refusing the petition. A certified transcript of the proceedings in the state court was then filed in the United States Court, and that court issued a temporary injunction restraining further proceedings in the state court. Lee lodged motions to dissolve the injunction and to remand the cause to the state court. Both motions were pending without disposition at the time the supreme court of the state affirmed the judgment, previously adverted to. Thereafter the injunction was dissolved and the cause was remanded to the District Court of Carter County. Execution issued out of the District Court of Carter County on the judgment rendered in favor of Lee. The undivided sixty per cent interest in that part of the homestead allotment covered by the lease was levied upon and sold to H. E. Ledbetter, as trustee, for $875. The heirs of Nellie Stechi appealed from the order of the court confirming such sale. The appeal was dismissed. Lewis v. Lee, 159 Okl. 257, 15 P.2d 3. A writ of garnishment subsequently issued out of the state court directing the Superintendent and Disbursing Agent of the Indian Agency to pay over royalties exceeding $11,000 then in their custody, to be applied in satisfaction of the balance due on the judgment. The Superintendent and Disbursing Agent answered that the moneys were under the exclusive control of the Secretary of the Interior who was not a party to the proceeding. By agreement of the parties, the proceeding was stayed while in that status.
The owners of the judgment rendered in the District Court of Carter County filed a claim with the administrator of the estate of Nellie Stechi for the-amount of the judgment less the $875 received for the sale of the land to Ledbetter, as trustee. The heirs of' Nellie Stechi filed a protest against the claim, and the administrator rejected it. The owners of the judgment filed suit against the administrator in' the District Court of McCurtain County on such claim. The administrator and the heirs defended. The court found against plaintiffs on the ground that the claim had not been presented within the four months period allowed by law for such purpose. The supreme court reversed the judgment, holding that the claim had been- seasonably filed. Lee v. Epperson, 168 Okl. 220, 32 P.2d 309.
The United States, in its own right and in its capacity as guardian of Sezzarine Lewis, Kelsey Samuel, Gardner Samuel, Aaron Nelson Samuel, and Ozella Samuel, full-blood Choctaw Indians, and sole heirs of Nellie Stechi, then filed this suit in the United States Court for Eastern Oklahoma against DuBois, Lee, Ledbetter, individually and as trustee, Skelly Oil Company, The Carter Oil Company, and others, to establish and quiet title in the homestead and surplus allotments, subject to the two oil and gas leases covering the twenty acres; to establish title and right to all royalties theretofore or thereafter derived under the two leases, or otherwise, including royalty funds which had accumulated in the custody of the Secretary of the Interior; to bar all defendants, except Skelly Oil Company and The Carter Oil Company from any right, title, interest or estate in such lands and royalty funds; to cancel of record the contract between Nellie Stechi and DuBois and Lee, the judgment of the District Court of Carter County, the order confirming the sale, the sheriff’s deed, and the trust agreement between Ledbetter and others; and for an accounting on the part of the Skelly Oil Company and The Carter Oil Company for royalties arising under such leases. By answer all defendants, except the two oil companies, pleaded the contract which Nellie Stechi entered into with DuBois and Lee, the judgment of the District Court of Carter County, the sale of the land, the order confirming the sale, and the judgment of the District Court of McCurtain County relating to the claim against the administrator. The oil companies answered that due to adverse claims and demands they had withheld payment of the royalties on all oil produced from the leased premises since January 1, 1931, and on all casinghead gas produced since December 31, 1932; and that they were ready and willing to account for and pay such royalties to the party or parties legally entitled thereto, as the court might direct.
In a carefully prepared opinion, the court determined the questions in favor of the defendants. 24 F.Supp. 814. A decree was entered which provided that the United States take nothing for the benefit of the heirs of Nellie Stechi; that the judgment of the District Court of Carter County, the sale made under such judgment, and the sheriff’s deed were valid; that the title in the then present owners be quieted; and that the royalty funds accrued and accruing, those in the hands of the Secretary of the Interior and those retained by Skelly Oil Company and The Carter Oil Company, be awarded and paid accordingly. The United States appealed.
A question of primary importance is whether the land constituting the homestead allotment was restricted against alienation by Nellie Stechi at the time of the execution of the contract with DuBois and Lee. The allottee, her two children, and Nellie Stechi were full-blood Indian citizens and members of the Five Civilized Tribes. Under the applicable law of descent and distribution, Nellie Stechi inherited the land on the death of Ledcie Stechi. Section 1 of the Act of May 27, 1908, 35 Stat. 312, provides, among other things, that all allotted lands of enrolled full-blood Indians of the Five Civilized Tribes shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April 26, 1931. The pertinent part of Section 9 is m this language: “That the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee’s land: Provided, That no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee: Provided further, That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March fourth, nineteen hundred and six, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior in the manner provided in section one hereof, for the use and support of such issue, during their life or lives, until April twenty-sixth, nineteen hundred and thirty-one; but if no such issue survive, then such allottee, if an adult, may dispose of his homestead by will free from all restrictions; if this be not done, or in the event the issue hereinbefore provided for die before April twenty-sixth, nineteen hundred and thirty-one, the land shall then descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions *■ *
The section embraces and covers three separate situations: First, where land of an allottee descends upon his death to others than full-blood Indian heirs, restrictions against alienation ate removed, and those acquiring it may alien or convey it. Second, where it descends to full-blood Indian heirs, they also are authorized to alien and convey it provided the conveyance is approved by the court having jurisdiction of the settlement of the estate of the deceased allottee. And third, where issue born since March 4, 1906, survives an allottee of one-half or more Indian blood, the homestead remains inalienable, unless restrictions are removed by the Secretary of the Interior in the manner provided in section 1, for the use and benefit of such issue during the remainder of his life but not later than April 26, 1931; and where the allottee did not make a will disposing of the homestead, and such issue born after March 4, 1906; dies before the specified date in 1931, the homestead then and thereupon descends according to the law of Oklahoma relating to descent and distribution, free and clear of any restriction against alienation. The Government contends that the two provisos must be construed together, and that when so construed the homestead descends on .the death of the special issue prior to April 26, 1931,-free of restrictions against alienations but the conveyance must be approved by the county court in the manner required in the first -proviso. The general function of a proviso is to except something from the basic provision, or to qualify or restrain its general scope, or to prevent' misinterpretation. United States v. Morrow, 266 U.S. 531, 45 S.Ct. 173, 69 L.Ed. 425. These two provisos each relate back to the basic provision and qualify or limit it, but they are separate and independent of each other. Neither supplements, implements, conditions or extends into the other. The provision in the first requiring approval of a conveyance by the court cannot by any recognized rule for the interpretation of statutes be construed as- proj ected into the second.
It is also urged that the entire act and prior and subsequent legislation in pari materia must be taken into consideration in construing the seeming inconsistency between the. secónd proviso ánd the first. The argument is that the detailed care with which Congress legislated for the protection of full-blood Indians in earlier and later acts, the policy, evinced by the Act of 1908 and other acts, to retain supervision until April 26, 1931, over allotted lánds while in the hands of full-bloods, and the language contained in section 9, all considered together, indicate a legislative intent and purpose that the restriction contained in the first proviso should apply to a homestead allotment inherited by full-blood Indians from the heir of the allottee born after March 4, 1906, and that such full-bloods cannot alien it without the conveyance being approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee. Congress has from time to time evidenced a purpose to retain supervision over allotted lands while in the hands of full-blood Indians of the Five Civilized Tribes. Still the argument now advanced, is met with the difficulty that the second proviso does not contain the limitation or restriction which is asserted. It provides in clear language that where an allottee of one-half or more Indian blood did' not make a will disposing of the homestead allotment, and where surviving after-born issue dies prior to the named date in 1931, the homestead thereupon descends according to the laws of Oklahoma relating to descent and distribution, free of restrictions. No limitation upon the right of alienation is provided. No approval of a deed or other con-f veyance is exacted. The broad language in which the proviso is couched should not be limited or restricted by judicial interpretation which amounts to the insertion of language which Congress omitted. No warrant exists in law for the placing of a construction upon the proviso which is tantamount to adding at its conclusion a provision that a conveyance must be approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee.
The Supreme Court of Oklahoma considered this question in Grisso v. Milsey, 104 Okl. 173, 230 P. 883. There the allottee died seized of his homestead allotment, and survived by his wife and several children, one of whom was born after March 4, 1906. It was held that a conveyance made by the widow and other children prior to the death of the after-born heir in 1919 was invalid; that on the death bf such heir the homestead descended free of restrictions against -alienation; and that a convéyance thereafter made by the heirs of such deceased child of the allottee did not require the approval of the county court. The United States District Court for Eastern Oklahoma considered the statute in United States v. Martin, 45 F.2d 836. The question there was the validity of a deed purporting to convey the homestead allotment of a deceased full-blood Choctaw, executed in 1929 by the surviving son of the allottee, born after March 4, 1906, and approved by the county court. In reaching the conclusion that the deed was invalid, the court cited Grisso v. Milsey, supra, with approval. In holding that other heirs of a deceased allottee had no alienable interest in the homestead allotment during the lifetime of the issue born after March 4, 1906, but not later than April 26, 1931, this court cited and relied to some extent upon Grisso v. Milsey, supra. Holmes v. United States, 10 Cir., 53 F.2d 960. The same question came before this court in Johnson v. United States, 10 Cir., 64 F.2d 674. Doubt was expressed concerning the correctness of the holding in Grisso v. Milsey and in United States v. Martin, supra, but it was said that the construction there placed upon the statute had become a rule of property in both the state and federal courts of Oklahoma and should be followed. While the narrow question now under consideration was not involved, the view that on the death of the afterborn or special issue of the allottee before the fixed date in 1931, the homestead descended under the state law of descent and distribution without restrictions against alienation and, therefore, a conveyance subsequently executed by the heirs of such deceased issue is valid without approval of the county court seems to find support in Parker v. Riley, 250 U.S. 66, 39 S.Ct 405, 63 L.Ed. 847.
The Government places strong reliance upon King v. Ickes, 62 App.D.C. 83, 64 F. 2d 979, and United States ex rel. Warren v. Ickes, 64 App.D.C. 27, 73 F.2d 844, but they do not lend aid. The facts in the first were that with the consent of the Secretary of the Interior the allottee executed an oil and gas lease covering his homestead and later died seized of such homestead. His widow and two children were his sole heirs at law. - One of the children was born after March 4, 1906, and died in 1930. The widow and the other child conveyed the homestead by deed which was approved by the county court having jurisdiction of the settlement of the estate of the allottee. Thereafter the° child who had joined in the deed brought suit against the Secretary of the Interior to recover a share of the money which represented royalties and profits from the' land. After referring to section 9, as amended, the court stated that on the death of the special heir, prior to the year 1931, restrictions against alienation with approval of the county court were removed, and further that the land was unrestricted at the institution of the suit. But the controversy presented and decided was the status of the fund which had accumulated in the hands of the Secretary. The contention of the Secretary was that the royalties derived from the land prior to the removal of restrictions were separate and apart from the land and still remained under his control for the use and benefit of the heirs until the expiration of the extended period of restrictions. Sustaining the contention, the court held +hat section 1 of the Act of January 27, 1933, 47 Stat. 777 — imposing restrictions until April 26, 1956, on all funds and securities then held or thereafter coming under the supervision of the Secretary of the Interior, belonging to and .only so long as belonging to Indians of the Five Civilized Tribe's of one-half or more Indian blood — applied, and that for such reason plaintiff could not prevail. The question whether approval of the deed by the county court was essential to its validity was not involved. In the other case, the allottee died seized of his homestead allotment, and leaving as his heirs at law his wife and a son, born after March 4, 1906. In 1915, the widow, acting for herself and as guardian for the son, executed an oil and gas lease on the homestead, which was approved by the Secretary of the Interior. The son died in 1930, and litigation arose respecting his estate. In July 1931, the widow entered into a written contract with an attorney in which she employed him to represent her in the litigation and agreed that he should receive as his compensation one-third of the land and moneys involved; and such contract was approved by the county court. She prevailed in the litigation, and' thereafter the United States on the relation of the attorne) brought mandamus to compel the Secretary to pay-him the share of the fund then in the hands of the ■ Secretary representing proceeds of royalties accrued under the lease, to which" he asserted title and ownership under the contract. Payment had been refused and the suit was defended on the ground that the funds were restricted by the Act of January 27, 1933, supra. The court held that while Congress had plenary power to impose or reimpose restrictions on property of an Indian, the title and interest of the attorney in the land and money constituting the estate became fixed prior to the enactment of the statute in 1933, and therefore the act did not serve to place lestrictions on his share of the money in the hands of the Secretary. The question whether approval of the contract was requisite to its validity was not involved or decided, but the court said in the course of its opinion that the death of the son of the allottee in 1930 lifted all restrictions from the homestead allotment and the royalties which had been derived therefrom. The question presented is freighted with difficulty, but we think Nellie Stechi inherited the homestead allotment free of restrictions against alienation, and that approval by the county court of the contract which she entered into with DuBois and Lee was not essential to its validity.
The case of Grisso v. Milsey, supra, was decided in 1924, and the construction there placed upon section 9 became a rule of property in the State of Oklahoma. The construction placed by a state court on a federal, statute is not binding on federal courts. But such construction which has become a rule of property and for years has governed transfers of real estate should not be overturned even though it may be open to doubt. Reynolds v. Fewell, 236 U. S. 58, 35 S.Ct. 230, 59 L.Ed. 465; Truskett v. Closser, 236 U.S. 223, 35 S.Ct. 385, 59 L.Ed. 549; Johnson v. United States, supra.
Next comes the question of the effect of the judgment of the District Court of Carter County rendered in the suit which Nellie Stechi instituted against DuBois and Lee to cancel and set aside the contract. Since the homestead was free of all restrictions against alienation at the time of the execution of the contract, that court clearly had jurisdiction of the subject matter and of the parties. The authenticity of the contract, the due performance on the part of Lee, the amount due him, his ownership of a part of the homestead, and his right to a lien on the remainder to secure the amount due him were issues tendered and adjudicated. That adjudication is binding and constitutes res judicata as to the parties to the action. But it is contended that such judgment is not binding on the United States since it was not a party. The United States is not bound by the judgment of a state court in respect of restricted property of an Indian ward where it was not a party. Bowling v. United States, 233 U.S. 528, 34 S.Ct. 659, 58 L.Ed. 1080. But as has been said, the property in question was not restricted at the time the contract vas executed and at the time the judgment of the state court was entered. Nellie Stechi was unrestricted in her right to contract with respect to such property or to convey it.' She exercised that right. A state court adjudicated her rights under the contract, and the decree has become final. A state court of competent jurisdiction in Oklahoma may render a valid judgment in respect of unrestricted property of an Indian of the Five Civilized Tribes. And such a judgment constitutes res judicata as to the Indian, and it is not open to attack in a later suit brought by the United States, except on jurisdictional grounds, even though the United States was not a party to the suit.
The remaining contention which calls for discussion is assuming that the homestead tract was not restricted against alienation, the decree errs in directing the Secretary of the Interior and the Superintendent and Disbursing Agent, respectively, of the Five Civilized Tribes to pay over the funds in their custody and control representing proceeds of royalties. Section 1 of the Act of January 27, 1933, 47 Stat. 777, supra, is relied upon to sustain the point. That section is textually limited to funds and securities under the supervision of the Secretary of the Interior, belonging to and only so long as belonging to members of the Five Civilized Tribes of one-half or more Indian blood. It plainly applies only to moneys and securities belonging to Indians. The rights of Lee and his assignees to their share in the funds in the hands of the Secretary and his subordinates had become 'fixed and determined prior to the time the statute became effective. For that reason the statute has no application whatever to their share of such fund.- United States v. Ickes, supra.
The decree is affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - property disputes"?
A. disputes over real property (private)
B. eminent domain and disputes with government over real property
C. landlord - tenant disputes
D. government seizure of property - as part of enforcement of criminal statutes
E. government seizure of property - civil (e.g., for deliquent taxes, liens)
Answer:
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songer_opinstat
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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 whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Charles MATNEY, Jr., Appellant, v. Bill ARMONTROUT, Appellee.
No. 91-1052.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 12, 1991.
Decided Feb. 11, 1992.
Michael Gross, St. Louis, Mo., argued, for appellant.
David J. Hansen, Jefferson City, Mo., argued (Frank A. Jung, on the brief), for appellee.
Before BOWMAN, Circuit Judge, ROSS, Senior Circuit Judge, and LOKEN, Circuit Judge.
ROSS, Senior Circuit Judge.
Appellant Charles Matney was convicted in the Circuit Court of St. Charles County, Missouri of three counts of second degree burglary and three counts of stealing over $150.00. He was sentenced as a persistent offender to seven years imprisonment for each count, with the sentences to run consecutively.
Following a series of burglaries of businesses in St. Peters, Missouri, appellant learned that he had become the target of an investigation conducted by Detective Ed Janke of the St. Peters Police Department. Appellant then voluntarily came to the police station to answer questions, whereupon he was arrested and interviewed by Detective Janke. After signing a rights waiver form and stating that he did not want a lawyer present, appellant gave a detailed confession of how he had broken into and stolen property from various businesses. Appellant was subsequently found guilty by a jury on all six counts charged in the indictment.
On November 30, 1989, after exhausting state court remedies, appellant filed a petition for habeas corpus relief in the federal district court, alleging that his constitutional rights had been violated when he was denied access to counsel prior to making his confession and through the ineffective assistance of his trial attorney. Appellant now appeals the district court’s denial of his petition.
I.
Appellant first argues on appeal that his confession was illegally obtained when his attorney was incorrectly informed that appellant was not at the police station and thus was prevented from speaking with appellant before or during the police interrogation. Specifically appellant argues that his retained counsel, Ron Brock-meyer, learned of appellant’s presence at the police station at approximately 1:00 p.m. on the day of appellant’s arrest and immediately phoned the station. He informed the dispatcher that he was appellant’s attorney and asked if appellant was at the station. The dispatcher replied that appellant was not at the station. Brock-meyer placed a second call to the police station approximately fifteen minutes later and told the dispatcher that he was sure that appellant was there. The dispatcher then checked with Detective Janke and was allegedly informed that appellant was not in the building. Sometime later in the afternoon, Brockmeyer placed a third call to the police station and spoke directly with Detective Janke who stated that appellant was at the station but that appellant would not be available to speak with his attorney for thirty minutes.
Appellant now argues that the police’s failure to inform him of his attorney’s attempts to contact him, as well as the misleading or deceptive statements made to his attorney, constituted a violation of appellant’s constitutional right to due process of law.
The Supreme Court’s decision in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), is controlling on this issue. In Moran, the defendant confessed to the murder of a young woman. At no point during the interrogation did the defendant request an attorney. However, while he was in police custody, the defendant’s sister attempted to retain an attorney to represent him. The attorney telephoned the police station and received assurances that the defendant would not be questioned until the next day. In fact, the interrogation session that yielded the incul-patory statements began later that evening. The Court found that this conduct, while distasteful, did not violate the defendant’s constitutional rights. Id. at 424, 106 S.Ct. at 1142.
The Moran Court reasoned that “reading Miranda to forbid police deception of an attorney would cut the decision completely loose from its own explicitly stated rationale ... [of] insuring] that the suspect’s right against compulsory self-incrimination is protected.” Id. at 424-25, 106 S.Ct. at 1143 (quotation omitted). Failure by the police to inform a defendant of an attorney’s telephone call does not deprive a defendant of “knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Id. at 424, 106 S.Ct. at 1142. The Court made clear that, whether intentional or inadvertent, the level of police culpability in failing to inform the defendant of the telephone call “has [no] bearing on the validity of the waivers.” Id. at 423, 106 S.Ct. at 1142.
Similar to the facts in Moran, the volun-tariness of appellant’s waiver is not at issue. Instead, the appellant argues that the police’s failure to inform him of his attorney’s attempts to contact him fatally undermined the validity of the otherwise proper waiver of rights. The Moran Court clearly rejected such an argument.
Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.... Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.
Id. at 422-23, 106 S.Ct. at 1141-42.
We recognize that Moran’s holding is limited by the Court’s comment that “on facts more egregious than those presented here police deception might rise to a level of a due process violation.” Id. at 432, 106 S.Ct. at 1147. The Court noted that such a due process violation may be found where police misbehavior “so shocks the sensibilities of civilized society.” Id. at 433-34, 106 S.Ct. at 1148. The police conduct at issue here does not rise to that level of culpability and in fact is similar to that which was considered and rejected in Moran. Therefore, we conclude that such conduct did not violate the appellant’s right to due process of the law.
Taking this analysis one step further, appellant also argues that the fact that he had retained counsel somehow nullifies his otherwise voluntary waiver of rights. We think just the opposite is true. A defendant who retains counsel, then waives his right to such counsel upon arrest, exhibits an even greater understanding of the nature of his legal rights and, consequently, an intelligent waiver of such rights.
II.
Appellant next argues that the district court erred in denying habeas relief because the evidence reflects a series of substantial errors in trial counsel’s representation of appellant which constitutes ineffective assistance of counsel. Appellant asserts that trial counsel (1) refused to allow appellant to testify at trial, (2) refused to interview or call appellant’s parents as witnesses, (3) failed to interview or call Gerald Ell as a witness, (4) introduced or failed to object to several instances of hearsay testimony, (5) failed to file a motion for a new trial, and (6) placed the prosecuting attorney on the stand without previously interviewing him.
In order to establish ineffective assistance of counsel in a habeas corpus proceeding, the defendant must show that counsel’s performance fell below an objective standard of reasonableness and that these deficiencies in counsel’s performance were prejudicial to the defense so that, but for counsel’s performance, there exists a reasonable probability that the outcome of the case would have been different. Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984); Couch v. Trickey, 892 F.2d 1338, 1343 (8th Cir.1989).
We quickly dispose of several of appellant’s claims of ineffective assistance of counsel under this standard. First, appellant’s trial counsel stated that he discouraged appellant from testifying on his own behalf because he believed that appellant would perjure himself and would open an inquiry into appellant’s prior burglary and stealing convictions. Defense counsel also stated that he did not call Gerald Ell to testify because he believed that Ell would have been impeached by the police officers who testified at trial. He also did not call appellant’s parents because he believed they would commit perjury if they were allowed to testify. These decisions were all based on trial strategy and do not constitute ineffective assistance of counsel. Even if we were to hold that these decisions fell below an objective standard of reasonableness, no prejudice resulting from such deficient performance has been shown.
We more closely scrutinize appellant’s argument that he received ineffective assistance of counsel when his trial attorney introduced or failed to object to several instances of hearsay testimony and then called the prosecuting attorney to testify as a defense witness without previously interviewing him. Although we are troubled in particular by defense counsel calling the prosecuting attorney to the stand as a defense witness, we cannot find that this practice was so prejudicial to the appellant as to constitute ineffective assistance of counsel within the Strickland standard, in light of the otherwise overwhelming evidence of appellant’s guilt. As the Missouri Court of Appeals noted:
Testimony established that defendant made a detailed confession of the burglaries which included a factually correct account of how he and his accomplices gained access to the business, how the ransacking occurred, and which items were stolen. These accounts matched the testimony given by the victims. There was also testimony that defendant hit himself on the forehead while burglarizing a safe at one of the businesses and that defendant still had a mark on his forehead at the time the confession was given.... Additionally, a witness testified that he had received threats from defendant warning the witness that his life would be in jeopardy if he testified.
State v. Matney, 721 S.W.2d 189, 191 (Mo.App.1986).
We conclude that based on the otherwise overwhelming evidence of guilt, none of the instances of alleged ineffective assistance of counsel rise to the level of a constitutional violation of appellant’s rights under the standard set forth in Strickland, as no prejudice from any of the alleged errors by trial counsel can be shown.
III.
Based on the foregoing, we conclude that the district court did not err in denying appellant’s motion for writ of habeas corpus. The judgment of the district court is affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
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.
James F. RICE, Appellant, v. MILITARY SALES & SERVICE CO., Appellee.
No. 79-1106.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 6, 1979.
Decided May 1, 1980.
Jerome P. Friedlander, II, Arlington, Va. (Friedlander, Friedlander & Brooks, P. C., Arlington, Va., on brief), for appellant.
George D. Varoutsos, Arlington, Va., for appellee.
Before WINTER, RUSSELL and HALL, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
The plaintiff/appellant has sued the defendant/appellee, his employer, for loss of benefits due to the alleged failure of the defendant to procure, as agreed, coverage for him under a group insurance policy providing, among other things, accidental benefits to its beneficiaries, and available for “All officers and full-time Salaried and Commissioned Employees” of the defendant. Under the terms of the group policy, a covered employee was entitled to recover half the principal sum, (i. e., $50,000) for the “entire and irrecoverable loss of sight” of “one eye” due to an accident. The plaintiff alleged that he had been shot accidentally in the right eye during the hunting trip and that, as a result, he had lost the “entire and irrecoverable loss of sight” in his right eye. Had the defendant-employer properly processed coverage for him under the group policy, as the defendant had agreed to do, he would, under his theory of the case, have been entitled to $50,000 under the policy for the accidental loss of sight in his right eye. He claimed that, since his loss of such benefits was due to the defendant’s negligence in failing to process coverage for him under the policy, he was entitled to recover such benefits from the defendant.
After answer this action of the plaintiff proceeded to trial before a jury. At the conclusion of plaintiff’s evidence, the district court granted the defendant’s motion for a directed verdict. The basis for the district court’s ruling was that, in its opinion, the evidence offered by the plaintiff was “clear, unambiguous, uncontradicted” that the plaintiff had not “lost the sight in one eye,” and presumably even had the defendant processed the insurance, the plaintiff would not have been entitled to recover under the policy and, consequently, he would have suffered no loss by reason of any negligence of the defendant (which personally the defendant denies). From that ruling and the judgment entered thereon, the plaintiff has appealed. We reverse.
So far as this appeal is concerned, the single question posed is whether there was sufficient evidence at the conclusion of plaintiff’s testimony, to warrant submission to the jury of the question whether the plaintiff had suffered accidentally the “entire and irrecoverable loss of sight” in his right eye for which loss, had there been coverage, under the policy, he would have been entitled to recovery. In reviewing the record on that issue, we are required to accept as true the testimony developed by the plaintiff during his presentation and to view all inferences reasonably deduced therefrom favorably to the plaintiff. Ard v. Seaboard Coast Line Railroad Company, (4th Cir. 1973) 487 F.2d 456, 457; Boleski v. American Export Lines, Inc., (4th Cir. 1967) 385 F.2d 69, 74. That evidence, as included by agreement of the parties in the appendix, consisted of two witnesses, the plaintiff and a medical witness. The plaintiff testified to the hunting accident when he was shot in his right eye. He then detailed the efforts made by him to treat the injury thus inflicted. He had undergone at least three operations in an attempt to save the sight of the eye. The “extensive surgical repair” conducted on his injured eye during his several operations resulted in the removal of the lens of the eye and the vitreous jelly that fills most of the interior of the eye.
Even after he had undergone these operations, the plaintiff could not distinguish with his right eye “any forms or figures;” the most he could see with that eye was the difference between “light” and “dark.” The only method of improving the plaintiff’s sight in his right eye was by fitting the eye with a contact lens. With the use of the contact lens the plaintiff did have some “vision” in the right eye. But so far as giving the plaintiff any practical use of his injured eye, the installation of the contact lens was, in the language of the medical witness who fitted the lens, “a failure primarily because of the constant appearance of double vision.” The physician said “the double vision resulted from the fact that, due to the restrictive motions of his right eye, his brain was receiving one image from the uninjured left eye and a different image from this treated right eye, and the brain was perceiving these images in two different positions . . . .” He elaborated that, “[d]oubling of imagery is an absolute situation that, under no circumstances, can any of us function in society with double imagery which would be [as in this case] one-hundred percent in all fields of gaze.” This “doubling of imagery” made the plaintiff’s condition, according to the physician, “intolerable” and rendered it impossible for him “to functionally use this lens.” The plaintiff, also, has light sensitivity in his eye because of his injury. The physician added that the reasonable way for the plaintiff to function with this injury, considering all his problems, “is by total occlusion of all imagery from his right eye, namely by use of the black patch.” This meant, in the opinion of the medical witness, that the plaintiff could not use his injured eye “in an ordinary useful manner” and has lost “100 per cent” of the “practical use of his right eye.”
The medical testimony did suggest that, if the plaintiff would cover his good left eye and have his right eye adjusted with contact lens, he would have vision in his right eye but there would be “considerable distortion of vision.” This would mean, however, that the plaintiff was giving up the use of his perfectly good eye in order to rely on the imperfect vision afforded him by the injured eye. What in effect all of this added up to is that the plaintiff can obtain vision from either eye, provided the injured eye, when used, is fitted with contact lens, but he can never use both eyes at the same time.
We think the above evidence was sufficient to withstand a motion for a directed verdict. The first requirement of the policy was that the loss of sight be “entire.” “Entire loss” of the use of an eye does not mean blindness; the term has been defined generally to mean “that the sight left is of no practical use.” Wallace v. Insurance Company of North America, (6th Cir. 1969) 415 F.2d 542, 544 (under Kentucky law); Order of United Commercial Travelers v. Knorr, (10th Cir. 1940) 112 F.2d 679, 682; Roy v. Allstate Ins. Co., (1978) 34 Conn.Sup. 650, 383 A.2d 637, 638; Lewis v. Metropolitan Life Ins. Co., (1976) 397 Mich. 481, 245 N.W.2d 9, 11; Brinson v. Old Republic Life Insurance Company, (1957) 247 N.C. 85, 100 S.E.2d 246, 248. And this is the rule in Texas, whose law the parties seem to agree is controlling in this case. Pan-American Life Ins. Co. v. Terrell, (5th Cir. 1929) 29 F.2d 460, 462 (under Texas law); Reliable Life Insurance Company v. Steptoe, (Tex.Civ.App.1971) 471 S.W.2d 430, 432 (citing and following Order of United Commercial Travelers v. Knorr, (10th Cir. 1940) 112 F.2d 679. Specifically, the ability “to perceive light and objects, but no ability to distinguish and recognize objects,” which was the extent of plaintiff’s ability to see with the right eye, meets the criteria for “entire” loss of sight under Texas law. Pan American Life Ins. Co. v. Terrell, (5th Cir. 1929) 29 F.2d 462.
The mere fact that the plaintiff may have a certain usable vision in his right eye when fitted with contact lens if he covers his good left eye is of no moment in the resolution of whether his loss of sight was “entire.” When he fits the injured eye with a contact lens, he is forced to block his good left eye to secure any use of the injured eye. Whether he uses a contact lens in the injured eye or not, the result is the same in either event: The plaintiff loses the complete or “entire” sight of one eye. Such a loss is compensable under a policy insuring against the “entire” or “total” loss of sight of one eye. Travelers’ Protective Ass’n. of America v. Ward, (1933) 99 Ind.App. 97, 187 N.E. 55, stated the reason for this conclusion:
“While it is true that under certain conditions, [the plaintiff] has sight in his left [or defective] eye, it is equally true and expert testimony on both sides shows that the plaintiff can use but one eye at a time. If he can use but one eye at a time, he has lost the sight of the other eye.” 187 N.E. p. 57.
The reliance of the defendant on Harlan v. Aetna Life Insurance Company, (1972) 6 Wash.App. 837, 496 P.2d 532, is misplaced in this connection. The plaintiff’s condition in that case was not too different from that of the plaintiff here. The trial judge there, unlike the district judge here, ruled that the plaintiff’s showing warranted submission of the issue of “entire loss of sight” to the jury under an instruction that “ ‘[t]he words “entire loss of sight” do not mean utter blindness but means [sic] no useful life.’ ” The jury resolved the issue in favor of the insurance company and the plaintiff appealed from a denial of a new trial. The appellate court approved the instructions and sustained the denial of a new trial. Implicit in its ruling was a finding that the case was properly submitted to the jury because of the conflict in the evidence but “[b]ecause the jury’s decision [in favor of the insurance company] is supported by substantial evidence, the trial judge did not err in denying the motion for judgment n.o.v.” Had the district judge in this case submitted the case to the jury and the jury had returned a verdict for the insurance company — as was the case in Harlan —we would likely do just what the Washington Court did in Harlan in the event of a motion for a retrial by the plaintiff on grounds similar to those in Harlan. But that stage was not reached in this case because, unlike the court in Harlan, the district court here refused to submit the case to the jury on the issue of whether the plaintiff’s loss of sight was “entire.” And it is because the district court did refuse in this case to submit the case to the jury that the plaintiff has appealed.
The second requirement of the policy was that the plaintiff’s loss of sight be “irrecoverable.” Again, we are of the opinion that there was sufficient evidence that the plaintiff’s loss of sight was “irrecoverable” within the meaning of the policy. “Irrecoverable” in this context has been defined by the Texas courts as a loss of sight which is “not capable of being recovered, regained or remedied.” Or, as a more recent Texas case has defined irrecoverability of loss of sight: that term means a loss of sight which may not “be completely or substantially recovered, regained or remedied, by proper medical or surgical treatment and which treatment would be undergone by an ordinary prudent person under the same circumstances.” Lee Boone v. United Founders Life Ins. Co., (Tex.Civ.App.1978) 565 S.W.2d 380,381 RNRE (application for writ of error refused, no reversible error).
As we have said, the plaintiff in this case has had three operations, none of which has restored his sight in the right eye. The only procedure which has been suggested by any physician as possibly correcting in any way the plaintiff’s loss of sight was the use of a contact lens. The procedure, however, has been tried and has been found to create problems which made the use of a contact lens as a means of regaining his sight impossible. His sight is thus not regainable on operation or remediable in the opinion of the treating physician by any known procedure. We have no difficulty in concluding on the basis of this evidence that the irrecoverability of plaintiff’s loss of sight in one eye was for the jury.
It follows from the foregoing that the district court erred in directing a verdict at the conclusion of the plaintiff’s evidence on the ground that there was no proof of “entire and irrecoverable loss of sight” of one eye by the plaintiff. In so concluding, we express no opinion on any other defenses which the defendant may have asserted but which were not a ground for the district court’s grant of judgment. Our decision is limited to the facts presented in the record by the plaintiff and to the legal point on which the district court based its decision.
The judgment below is accordingly reversed and the cause is remanded to the district court for retrial.
REVERSED and REMANDED for new trial.
. Federal jurisdiction of the action is based on diversity.
The plaintiff initially joined the insurer, Hartford Accident and Indemnity Company, as a defendant but the action against it was dismissed on summary judgment. There has been no appeal from that dismissal. The only controversy remaining is between the plaintiff and his employer, the defendant.
. There are apparently other issues in the case but they were not raised or decided in connection with the motion for a directed verdict and we do not reach such issues on this appeal.
. The court overruled Sump v. St. Paul Fire & Marine Insurance Company, (1970) 21 Mich. App. 160, 175 N.W.2d 44, which was to the contrary.
. 496 P.2d at 534.
. Reliable Life Ins. Co. v. Steptoe, 471 S.W.2d at 432.
. Indeed, there are some authorities to the effect that even if sight can be restored by the use of an artificial lens, the insured is entitled to recover for the “entire and irrecoverable sight of’ an eye under an accident policy. Winegarden v. Peninsular Life Ins. Co., (Fla. App.1978) 363 So.2d 1172, 1173; Knuckles v. Metropolitan Life Insurance Company, (1971) 25 Utah 2d 319, 480 P.2d 745, 747. The reasoning behind these decisions was stated in Knuckles thus:
“[The insurance company] says if one gone blind can be made to see by artificial means, his sight is not totally gone and has been recaptured, and that is what the language means. The plaintiff says not so, because once something has gone it is gone and cannot be recovered, — such as natural teeth once gone are nonetheless gone though dentures may serve one better and without the hazard of cavities.”
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_usc1
|
46
|
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.
AKTIEBOLAGET SVENSKA AMERIKA LINIEN (SWEDISH AMERICAN LINE) et al., Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, American Society of Travel Agents, Inc., Intervenor.
No. 20458.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 14, 1966.
Decided Jan. 19, 1967.
Mr. Edward R. Neaher, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr! Warren E. Baker, Washington, D. C., was on the brief, for petitioners. Mr. Lloyd D. Young, Washington, D. C., also entered an appearance for petitioners.
Mr. Milton J. Grossman, Atty., Dept. of Justice, with whom Asst. Atty. Gen. Donald F. Turner, James L. Pimper, Gen. Counsel, Robert N. Katz, Sol., Walter H. Mayo, III, Atty., Federal Maritime Commission, and Irwin A. Seibel, Atty., Dept. of Justice, were on the brief, for respondents.
Mr. Robert J. Sisk, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Glen A. Wilkinson, Washington, D. C., was on the brief, for intervenor. Mr. Jerry C. Straus, Washington, D. C., also entered an appearance for intervenor.
Before Wilbur K. Miller, Senior Circuit Judge, and Danaher and Tamm, Circuit Judges.
TAMM, Circuit Judge:
In a previous decision in this case, we remanded to the Federal Maritime Commission because of our determination that the Commission’s decision lacked adequate findings to establish and support the Commission’s conclusions. We called upon the Commission in that decision to give further consideration to the two controverted issues in the case, id est, the legality of the so-called “unanimity rule” and the legality of the “tie-ing rule.”
On remand, the Commission, without taking additional testimony or evidence, accepted additional briefs from the parties, heard oral argument, and reached, by a divided vote, the same conclusions recorded in the earlier proceedings. The Commission’s Report and Order on Remand, served July 20, 1966, containing these restated determinations, is again challenged by the same petitioners who had attacked the Commission’s earlier action. In its present order, the Commission again strikes down both the provision of the Conference agreements requiring unanimous action of Conference members to fix or alter maximum commissions payable to travel agents (unanimity rule) and the provision of the Conference agreements prohibiting travel agents appointed by the Conference from selling tickets on competing non-Conference steamship lines without prior permission from the Conference (tieing rule). Both of these provisions are described in detail in our earlier opinion in this case, as are the identities of the parties, the provisions of pertinent statutes, and the governing case law.
There is no doubt whatsoever that the petitioner Conference was authorized by Section 15 of the Shipping Act, 46 U.S.C. § 814, to act in concert in all shipping matters until and unless the actions were found illegal by the Commission as being detrimental to the commerce of the United States and contrary to the public interest within the meaning of those terms as contained in this statute. The petitioners were, consequently, free to adopt, utilize, and be governed by a unanimous vote requirement on the subject of maximum commissions to travel agents, unless the respondent found the provision was, in fact, detrimental to the commerce of the United States or contrary to the public interest, in accord with the statutory requirements and limitations of 46 U.S.C. § 814. The same principle, of course, applies to the Conference action relating to the “tieing rule.” We remanded the Commission’s earlier opinion and order to permit the Commission to make findings based on evidence of record, if any there be, to support its conclusions that the Conference actions on those subjects were illegal under the statute.
The case now returns to us upon the same evidentiary record which was before us when we previously reviewed the proceedings. True it is that the Commission’s present opinion enlarges upon its previously stated views and is couched at various points in the phraseology of the statute. Careful analysis of the record, however, convinces us that nothing substantial has been added to support, sustain, or even justify the Commission’s condemnation and voiding of the Conference actions. As the two dissenting opinions of Commission members accurately point out, the Commission Report lacks sufficient basis in supporting facts or evidence of record and consists only of rationalizations, conjecture and opinion.
We are not satisfied that the Commission has made adequate response to our mandate to eliminate the doubts and problems which we pointed out in our prior opinion. We conclude, consequently, that the Commission’s decision is arbitrary and capricious and not supported by substantial evidence on the record considered as a whole.
We see no purpose in further remand, and, accordingly, we reverse the Commission action.
Reversed.
. Aktiebolaget Svenska Amerika Linien, et al. v. Federal Maritime Commission, et al., 122 U.S.App.D.C. 59, 351 F.2d 756 (1965).
. Section 15 of the Shipping Act, 1916 (hereinafter the “Act”), 39 Stat. 733, as amended, 46 U.S.C. § 814 provides in pertinent part:
“Every common carrier by water, or other person subject to this chapter, shall file immediately with the Commission a true copy, or, if oral, a true and complete memorandum, of every agreement with another such carrier or other person subject to this chapter, or modification or cancellation thereof, to which it may be a party or conform in whole or in part, fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying competition; pooling or apportioning earnings, losses, or traffic; alloting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried ; or in any manner providing for an exclusive, preferential, or cooperative working arrangement. The term ‘agreement’ in this section includes understandings, conferences, and other arrangements.
“The Commission shall by order, after notice and hearing, 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 contrary to the public interest, or to be in violation of this chapter, and shall approve all other agreements, modifications or cancellations. * * *"
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_decisiondirection
|
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.
UNITED GAS PIPE LINE CO. v. FEDERAL POWER COMMISSION et al.
No. 49.
Argued October 19-20, 1966.
Decided November 14, 1966.
Vernon W. Woods argued the cause and filed briefs for petitioner.
Peter H. Schiff argued the cause for respondent-Federal Power Commission. With him on the brief were Solicitor General Marshall, Ralph S. Spritzer, Richard A. Posner, Richard A. Solomon and Howard E. Wahrenbrock.
Bruce R. Merrill argued the cause and filed a brief for respondent Continental Oil Co.
Mr. Justice White
delivered the opinion of the Court.
United Gas Pipe Line Company and Continental Oil Company executed a contract effective January 31, 1953, providing for the sale by Continental and the purchase by United of gas produced from the Johnson Bayou Field in the State of Louisiana, at prices stated in the contract. The contract was to run for 10 years and from year to year thereafter unless terminated by either party on 90 days’ notice. To effectuate delivery to United’s nearby Mud Lake transmission line for transportation of the gas into the Beaumont, Texas, area, Continental constructed several thousand feet of pipeline, separators and storage tanks. United, for its part, constructed a short length of pipeline, a separator, a meter station and valves. United sought, was granted and accepted a certificate of public convenience and necessity authorizing the continued transportation of gas from the Johnson Bayou Field and the construction and operation of the facilities necessary therefor. 14 F. P. C. 582. Likewise, Continental was issued a certificate authorizing the sale of gas to United under the terms of the contract. 15 F. P. C. 1650.
In October 1962 Continental elected to terminate the contract at the end of the primary term. Negotiations for a new contract were fruitless. Continental, after refusing United’s offer to continue purchasing on a day-today basis at the old contract rate, filed a rate increase with the Commission asking for an effective date of January 31, 1963. The Commission accepted the filing over United’s protest. United, after advance notice to Continental, then ceased purchasing gas from the Johnson Bayou Field on January 31, 1963, and has since refused to purchase gas from that source. Following a petition by Continental, an order to show cause issued by the Commission to United and a full hearing, the Commission found that United, by ceasing to take gas from the Johnson Bayou Field, had abandoned its facilities used for this purpose as well as the service rendered by these facilities, contrary to the provisions of § 7 (b) of the Natural Gas Act which forbid such abandonment without the consent of the Commission being first obtained. Accordingly, the Commission ordered United to “renew operation of its Johnson Bayou Field facilities used to purchase gas from Continental” and directed that the purchases by United were to be at Continental’s new rate and in volumes consistent with the terms of the contract previously in force. 31 F. P. C. 1079, 1086. The Court of Appeals upheld the Commission’s order, 350 F. 2d 689, and we granted certiorari, 383 U. S. 924, because the case involved an important question concerning the Commission’s jurisdiction under the Natural Gas Act. We affirm.
We agree with the Commission and the Court of Appeals that United’s refusal to continue receiving gas from the Johnson Bayou Field constituted an abandonment of “facilities” and a “service” to which § 7 (b) applies. That section places conditions on the abandonment of facilities or of any service rendered thereby. The facilities covered by the section are those “subject to the jurisdiction of the Commission,” the further identification of which requires resort to other sections of the Act. Section 1 (b) declares that the provisions of the Act are to apply to: (1) the transportation of natural gas in interstate commerce, (2) the sale in interstate commerce of natural gas for resale for ultimate public consumption and (3) natural gas companies engaged in such transportation or sale. Under § 7 (c) no natural gas company is permitted to engage in the transportation or sale of natural gas, or to undertake the construction or extension of facilities therefor without a certificate of public convenience and necessity authorizing such acts or operations. Thus the “facilities subject to the jurisdiction of the Commission” which are reached by the abandonment provisions of § 7 (b) are those facilities required for the interstate transportation of natural gas and for the interstate sale of gas for resale to the ultimate consumer. Conversely, it would seem beyond argument that the proscription of abandoning “any service” rendered by those facilities would include both transportation and sale, the twin functions which subject the facilities to the provisions of the Act.
We are convinced that United's Johnson Bayou Field facilities were subject to the jurisdiction of the Commission. They were constructed solely for the purpose of the taking and interstate transportation of Johnson Bayou gas. They could not, therefore, be abandoned without the consent of the Commission and we do not understand United's position in this Court to be otherwise. United, however, insists that there has not in fact been a § 7 (b) “abandonment.” It is true that the Johnson Bayou Field facilities were neither removed nor disconnected. Their use could have been resumed at any time had United so desired. But the physical alteration of facilities is not a sine qua non restricting the Commission’s jurisdiction under § 7 (b). Here United ceased taking and transporting gas from the Johnson Bayou Field on January 31, 1963, has not taken that gas or used its facilities constructed for that purpose since that time and has no intention of doing so as long as Continental’s present rates continue in effect. United, the Commission found, had by its own action rendered its facilities “operationally dormant for a period of indefinite duration.” 31 F. P. C. 1079, 1083. In addition, the Commission found that its interest went beyond the physical alteration of facilities. “We have a regulatory responsibility to assure that gas once dedicated to the interstate market will continue to be available to that market so long as the public interest demands . . . .” 31 F. P. C. 1079, 1082. As the instant proceeding unmistakably revealed, the responsibility of the Commission could not adequately be met if it were powerless to assure that facilities “certificated to transport this gas,” ibid., continued to operate. To hold United’s conduct an abandonment within the meaning of § 7 (b) is a reasonable interpretation of the Act and we shall not disturb it.
The corollary conclusion, inescapably presented on the face of the Act itself, is that the consent of the Commission is necessary before United can cease taking and transporting Johnson Bayou gas, since this is a service United rendered through the facilities it constructed for that very purpose. United, however, contends that the words “any service” in § 7 (b) include only the sale of natural gas, not the taking and transportation of gas from any particular field. In its view it is free at any time to abandon the interstate transportation of gas from the Johnson Bayou Field, and to decide for itself wholly apart from the Commission what gas it will continue to transport interstate. But nothing in the Act, its legislative history or in our cases has been called to our attention which persuasively supports this narrow view or which would justify recognizing the sale of gas as a service but not the preceding transportation without which there would be no sale at all.
The Act gives the Commission jurisdiction over interstate transportation of natural gas as a separate and distinct matter, whether the transportation is for hire or for sale and whether the sale is for consumption or resale. FPC v. East Ohio Gas Co., 338 U. S. 464; FPC v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1; Panhandle Eastern Pipe Line Co. v. FPC, 359 F. 2d 675. Here, of course, the transportation is not for hire but for sale, some for consumption and some for resale. What is more, in Sunray Mid-Continent Oil Co. v. FPC, 364 U. S. 137, 149-150, the Court clearly recognized that the term “service” is not confined to sales but extends to the “movement of gas in interstate' commerce” and that one who engages in either the sale or the transportation of gas is performing a service within the meaning of both §§ 7 (e) and 7 (b). It could not be more clear that United here abandoned a “service,” the taking of Johnson Bayou Field gas and its transportation in interstate commerce. The statutory necessity of prior Commission approval, with its underlying findings, cannot be escaped.
Even so, United argues that the Act gives the Commission no authority over the purchase of natural gas, and that the Commission therefore exceeded its jurisdiction in ordering United to continue purchasing gas from Continental in amounts specified in an expired contract and at prices set unilaterally by Continental. It is true that the Act does not in so many words grant the same express authority over purchases to the Commission that it does over sales. Neither is there a blanket exemption of Commission jurisdiction over the purchase of gas, and there is express authority over transportation as well as sale. Under § 16, the Commission has the power “to perform any and all acts, and to . . . issue . . . such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of this Act.” 52 Stat. 830, 15 U. S. C. § 717o. Where it is necessary to regulate the purchase of gas in some respects to carry out its expressly granted authority over transportation and sale, the Commission must have the power to do so. In the case before us, there has been a § 7 (b) abandonment of facilities or services without Commission consent. It is therefore quite proper for the Commission to order the facilities reactivated and the abandoned service restored, even though the resumption by United of the transportation of gas from the Johnson Bayou Field will entail the purchase of gas from Continental at the legally established price. Undoubtedly, the continued purchase of gas has been ordered but only as an incident to regulating transportation or sale. This is no more than the Act authorizes and no more than United undertook to do when it sought and received certification for the service it sought to perform.
After United had begun to purchase gas from the Johnson Bayou Field in 1953 and to transport it to markets in the State of Texas, United sought a certificate of public convenience and necessity authorizing the construction and use of the facilities it had built and the continued transportation of the Johnson Bayou gas. United then asserted that the public convenience and necessity required the issuance of such a certificate. Both the construction and operation of the facilities and the transportation of gas by means thereof were found by the Commission to be required by the public convenience and necessity. United was found “able and willing ... to perform the service . . .” for which it had volunteered. A certificate was accordingly issued and formally accepted by United. United now wishes to abandon the express service it agreed to perform — the continued transportation of Johnson Bayou gas — without a § 7 (b) finding by the Commission “that the present or future public convenience or necessity permit[s] such abandonment.” This is precisely what the Act forbids.
United claims that it does not need the Johnson Bayou gas to serve its customers and that the forced purchase of gas at prices set by Continental and approved by the Commission without regard to the prices at which United under contract or competition is bound to sell the gas deprives it of property without due process of law. In our view, these claims are premature. We do not hold that it would be inappropriate for the Commission to permit abandonment in this case if it is asked to do so and the necessary findings are made. We hold only that United has abandoned facilities and service without the consent of the Commission and that it must reactivate those facilities and restore the service until and unless the statutory consent is obtained. If United now resorts to the Commission, it will have every opportunity to present its economic and constitutional grounds for abandonment.
For the reasons herein stated, the judgment of the Court of Appeals is affirmed.
It is so ordered.
United unsuccessfully petitioned for rehearing of the Commission's order approving the rate increase, 29 F. P. C. 525, but did not seek judicial review of the order.
Section 7 (b) of the Act provides that “No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present 'or future public convenience or necessity permit such abandonment.” 52 Stat. 824, 15 U. S. C. §717f (b).
The text of the section provides: “The provisions of this Act shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.” 52 Stat. 821, 15 U. S. C. §717 (b).
The text of the section, in relevant part, provides that “No natural-gas company or person which will be a natural-gas company upon completion of any proposed construction or extension shall engage in the transportation or sale of natural gas, subject to the jurisdiction of the Commission, or undertake the construction or extension of any facilities therefor, or acquire or operate any such facilities or extensions thereof, unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations . . . .” Added by the Act of February 7, 1942, 56 Stat. S3, 15 TJ. S. C. § 7,17f (c).
What we have said, of course, does not imply that the Commission has the. power to compel initial purchases of gas. We reach only the question of the Commission’s power under § 7 (b) to order reactivation of abandoned facilities and service.
United’s application for the certificate, docketed September 20, 1954, appears in FPC Docket No. G-2818, United Gas Pipe Line Company.
The Commission’s complete order appears in Docket G-2818, supra, n. 6; an abbreviated version appears in 14 F. P. C. 582. (Emphasis added.)
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
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.
BUTTRAM v. GRAY COUNTY, TEX., et al.
No. 6660.
Circuit Court of Appeals, Fifth Circuit.
Dec. 8, 1932.
Wales H. Madden, of Amarillo, Tex., for appellant.
Before BRYAN, SIBLEY, and WALKER, Circuit Judges.
WALKER, Circuit Judge.
This is an appeal from a decree dismissing a bill in equity filed by the appellant against appellees, Gray county, Tex., and officials of that county, which sought an injunction restraining and enjoining the enforcement of the collection of taxes for the years 1929 and 1930 assessed by that county against the appellant as the owner of the mineral interest described in an instrument dated February 7, 1928, whereby J. B. Bowers and his wife, Lizzie Bowers, “subject to the exceptions and reservations hereinafter contained,” granted, bargained, sold, conveyed, sot over, assigned, and delivered unto appellant “an undivided one-eighth (%) interest in and. to all the oil, gas, and other minerals in, under and that may be produced from” described lands in said Gray county, containing 3,320 acres, “together with the right of ingress and egress at all times, to, from and upon said lands for the purpose of mining, drilling, exploring and developing said lands for oil, gas and other minerals and removing tho same therefrom.” That instrument contained tho following provisions:
“Said lands being now under oil and gas lease, or leases, as the same may have been originally executed by the grantors herein, and as the same may be shown of record in the Deed Records of Gray County, Texas.
“It is understood and agreed that this sale is made subject to any and all of such leases as the same may be shown of record, but covers and includes the equal undivided one-eighth of all of the oil and gas royalty, gas rental, or royalty of any kind due and to become due under the terns of said leases;
“It is agreed and understood that the equal one-eighth part of the money rentals which may bo paid to extend the term, within which a well may be begun under the terms of any of said, leases is to be paid to the said Frank Buttram, and in the event that the above described leases, or any one or more of them for any reason becomes cancelled or forfeited, then and in that event the said Frank Buttram shall own the same undivided one-eighth interest in any down or bonus money that may bo paid for a new oil and gas lease on said lands described in such canceled or forfeited lease, and same undivided one-eighth interest in all future rentals that may be paid on any of said lands for oil, gas and mineral privileges.
“This sale is made for and in consideration of the sum of Ten Dollars ($10.00) cash in hand paid, the receipt of which is hereby acknowledged, and of the other considerations, payments and reservations as hereinafter set out. In addition to the cash consideration above stipulated, and paid to the grantors heroin, the said grantors here now expressly except and reserve to themselves from such conveyance all of the oil, gas and casinghead gas produced, saved and marketed from the interest in the foregoing lands above described, until the grantors heroin shall have been paid and shall have received from such source the sum of Three Hundred Fifty Thousand ($350,000.00) .Dollars, and all of sueh oil, gas and minerals in,-under and that may be produced from the interest in the lands above particularly described shall belong to and be the absolute property of the grantors herein until they shall have received sueh total sum of $350,000.00 from sueh oil, gas and casing-head gas and other minerals when, as and if the same are so produced, saved and marketed.
“It is understood that the grantors herein shall likewise receive any rentals that may be paid under the terms of any existing leases or any future leases that may be made on and covering any part of said lands that would otherwise be the property of the grantee herein, and shall likewise receive any and all down or bonus monies that may be paid for any future leases that may be granted on and covering said lands, or any part thereof to which the grantee herein would othererwise be entitled, and that any such money shall be applied as a credit to the total sum of $350,000.00 herein provided to be paid to the grantors herein and that when such total sum of $350,000.00 shall so be paid to the grantors herein from either of the above sources, then this conveyance shall become absolute and any and all other interests in said lands herein conveyed shall become absolutely the property of the grantee herein, free and clear of any liens, incumbrances or reservations, by reason of the exceptions and reservations-herein contained.
“To have and to hold the above described property, together with all and singular the' rights and appurtenances thereto in anywise .'belonging, unto the said Frank But-train,' his heirs and assigns forever, and. we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend..all and singular the property and property;'mghts herein conveyed unto the said Frank Butt'ram, his heirs and assigns forever, against every 'person whomsoever lawfully claiming' or to claim the same or any part thereof, but subject to the provisions and reservations of .this contract, as herein set out.” ,
It was stipulated by the parties that of the $350,000 to be paid under an above set out provision approximately $153,000 had been paid. The terms of the above-mentioned instrument do not indicate that the transaction it evidenced was connected with a sale by the grantors in that instrument of any other interest in the land described; but evidence disclosed that by a written contract 'dated February 6, 1928, those grantors contracted to sell and convey to appellant and others an undivided one-half interest in all the oil, gas, minerals, and mineral rights in the same lands, it being provided that one-half of sueh interest, being an undivided one-fourth interest in sueh oil, etc., was to be sold and conveyed for the consideration of $250,000 in cash, and $25,000 in cash payable on or before February 1, 1929; and evidence also showed that by a deed of the same date as that of the first above-mentioned instrument the grantors therein conveyed to the appellant an undivided one-eighth interest in all oil, g’as, and oilier minerals in the above-described lands, that deed containing an acknowledgment by the grantors of their receipt of the consideration for the interest thereby conveyed. It appeared that one-half of the mineral interest disposed of by those grantors was paid for, mostly in cash. It also appeared that under the terms of the sale evidenced by the first above-mentioned instrument, in the event of the mineral interest which was the subject of that sale producing or yielding the amount stipulated to be paid to the vendors from that source, they would get for that interest substantially more than the price for which they sold to the appellant another like mineral interest in the same lands. It was stipulated by the parties that for the fiscal tax years of 1929i and 1930 Gray county levied and assessed taxes against all the mineral interests mentioned in said contract, and that no controversy exists with respect to the taxes against sueh mineral interests except as to the interest described in the first above-mentioned instrument. The instrument hereinafter referred to is the one first above mentioned.
For the appellant it was contended that the interest in the described land acquired by him under the instrument referred to was not such a one as was subject to be taxed.
Under the Constitution and statutes of Texas all property, real, personal, or mixed, except such as is expressly exempted, is subject to taxation. Constitution of Texas, .Art. 8, § 11; Revised Civil Statutes of Texas (1925) art. 7145. “Real propei’ty for the purpose of taxation, shall be (Jonstrued to include the land itself, * * *. and all the rights and privileges belonging or in any wise appertaining thereto, and all mines, minerals, quarries and fossils in and under the same.” Revised Civil Statutes of Texas (1925) art. 7146. A conveyance of an undivided interest in and to all the oil, gas, and other minerals in, under, or that may be produced from described land, conveys an interest in realty which is subject to taxation in the hands of the grantee separate from the interest m such, land retained by the grantor. Texas Co. v. Daugherty, 107 Tex. 226, 176 S. W. 717, L. R. A. 1917F, 989.
It is plain that the above referred to instrument conveyed to the grantee, the appellant, a taxable interest in the described land, unless it was deprived of that effect by the exceptions and reservations therein contained. What the grantors excepted and reserved to themselves “until the grantors herein shall have been paid and shall have ree ceived from such source the sum of three hundred and fifty thousand ($350,000.00) Dollars,” was “all of the oil, gas and casing-head gas produced, saved and marketed” from the described interest, any rentals that may be paid under the terms of a,ny existing or future leases covering any part of the described lands, and any and all down or bonus moneys that may be paid for any future leases that may be granted on and covering said lands, or any part thereof. Those exceptions and reservations fell short of covering the entire interest which was conveyed to the appellant by the instrument. Substantial proprietory rights covered by Hie conveyance to the appellant were not within the exceptions and reservations. His right of ingress and ogress at all times to, from, and upon the described lands for the purpose of mining, drilling, exploring, and developiaig -said lands for oil, gas, and other minerals and removing the same therefrom, was not affected; any limitation or restriction to which the exercise of that right was subject at and after the date of the execution of the conveyance being the result, not of any exception or reservation made in favor of the grantors, but of previously granted oil and gas leases covering described lands.
The right of the grantee to- make new leases in the event of the termination, by cancellation, forfeiture, or otherwise, of those in force at the time the conveyance was executed, was not suspended while the whole or any part of the agreed price remained unpaid. But the existence of such rights in the grantee not covered by exceptions and reservations in favor of the grantors was not necessary to make the interest acquired by the grantee a taxable one. Texas decisions are to the effect that upon a sale and conveyance of land or an interest therein the subject of the sale becomes the property of the vendee for purposes of taxation, though the sale bo on credit and title is retained in the vendor until the agreed price is paid. Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S. W. 296, 29 A. L. R. 607; Harvey v. Provident Inv. Co. (Tex. Civ. App.) 156 S. W. 1127; Taber v. State, 38 Tex. Civ. App. 235, 85 S. W. 835.
It is not a-n uncommon incident of a sale by the terms of which the agreed price, in whole or in part, is not presently payable, for the seller, during a considerable period after the sale is consummated, to he entitled to be paid on, the price as much as, -or more than, the thing sold yields or produces during that period. As between the buyer and others than the seller, the buyer is not kept from being the owner of the thing sold by the seller’s retention of the right to receive what that thing yields or produces until there shall be realized from that source what is owing on the agreed price.
Contentions in behalf of the appellant that the instrument in question conferred on him a mere option to acquire the described interest, or that under that instrument the acquisition by him of a taxable interest in the described land was dependent on the performance or happening of a condition precedent, the payment in full of the agreed price, are not sustainable. That instrument had the effect of making the stated undivided one-eighth interest the property of the appellant for purposes of taxation, though the grantors retained the right to get what that interest might produce or yield until it amounted to $350,000. The right retained by the vendors was a means provided for bringing about the payment of the stipulated price of the interest sold and conveyed; the vendee, the appellant, not being personally obligated to pay that price. The appellant had title against every one except his vendors, and his interest was a taxable one. Harvey v. Provident Inv. C'o., supra. The court did not err in denying the injunctive relief prayed for.
The decree is affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Doris E. PARCELL, Plaintiff-Appellant, v. GOVERNMENTAL ETHICS COMMISSION, STATE OF KANSAS, and Leonard Thomas, et al., Defendants-Appellees.
No. 79-1475.
United States Court of Appeals, Tenth Circuit.
Argued May 6, 1980.
Decided July 17, 1980.
James Yates, Kansas City, Kan., for plaintiff-appellant.
Dennis D. Prater, Gen. Counsel, Governmental Ethics Commission and Sp. Asst. Atty. Gen., Lawrence, Kan., for defendantsappellees.
Before SETH, Chief Judge, BREITENSTEIN and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
CERTIFICATION OF QUESTION OF STATE LAW TO THE SUPREME COURT OF KANSAS
The United States Court of Appeals for the Tenth Circuit, pursuant to the provisions of K.S.A. 60-3201-3212 inclusive, hereby certifies to the Supreme Court of the State of Kansas the following question of law, which question is wholly and entirely subject to Kansas law, and which is substantially determinative of the above-captioned cause pending before the court. It appears there exists a body of law on the general subject. However, there is no controlling precedent in the decisions of the Supreme Court of the State of Kansas answering the specific question here presented.
The issue is whether the Kansas law having to do with the Governmental Ethics Commission violates the separation of powers doctrine under the Constitution of the State of Kansas.
The Kansas Governmental Ethics Commission, which is created by K.S.A. 25-4119a, has a total of 11 members, five of whom are appointed by the Governor of Kansas, two by the President of the Senate, two by the Speaker of the House of Representatives, one by the Minority leader of the House of Representatives and one by the Minority leader of the Senate. The Commission so constituted is charged with a variety of powers and duties pertaining to the administration and enforcement of the Kansas Campaign Finance Act, K.S.A. 25-4101 et seq.
The particular question which has been presented, among others, to this court, and which we hereby submit to the Supreme Court of Kansas, is whether the Governmental Ethics Commission, the majority of which is appointed by legislators, constitutes a usurpation of executive power by the Legislative branch of government and thereby violates the doctrine of separation of powers as the same is recognized as a part of the Kansas State Constitution.
The separation of powers question which is thus submitted arises under Kansas law. There are questions in this case in which the Constitution of the United States is drawn into question, and any jurisdiction that the federal court has is dependent upon the due process of law claims which arise under the Constitution of the United States. However, the predominant question in the case is the separation of power issue described above.
The mentioned federal questions will be considered by this court only if the Supreme Court of Kansas rules that the statute creating the Governmental Ethics Commission is not invalid as being contrary to the Constitution of Kansas.
STATEMENT OF THE FACTS
Plaintiff published and distributed to some local registered voters an article entitled “Elections without anybody to Vote for:” prior to the 1978 Primary Election in Wyandott County, Kansas. The article contained reprints of various newspaper articles and a signed statement by the plaintiff urging the defeat of Associate District Judge Donnelly and the election by write-in vote of Bill D. Robinson, Jr. The plaintiff filed no statements with the Office of the Secretary of State concerning these transactions. A complaint was filed with the Commission by its Executive Director alleging violation of the Act. The complaint stated:
Doris Parcell violated K.S.A. 1977 Supp. 25-4110 by making contributions or expenditures for the purpose of influencing the nomination or election to State office of Bill D. Robinson, Jr. and Francis Donnelly in an aggregate amount of more than One Hundred Dollars ($100.00), by not making two statements disclosing these transactions and containing information required by K.S.A. 1977 Supp. 25-4108, and by intentionally failing to file the two statements in the Office of the Secretary of State when due. The two statements were due July 25, 1978 and August 11,1978, respectively, as specified in K.S.A. 1977 Supp. 25-1108. K.S.A. 1977 Supp. 25-4128 provides that the intentional failure to file such statements when due is a Class A misdemeanor.
K.S.A. 25-4110 provides:
25-4110. Reports by certain persons; contents; filing. Every person, other than a candidate or a candidate committee, party committee, or a political committee, who makes contributions or expenditures, other than by contributions to a candidate or a candidate committee, party committee or political committee in an aggregate amount of one hundred dollars ($100) or more within a calendar year shall make statements containing the information required by K.S.A. 1975 Supp. 25-4108, and file them in the office of the secretary of state so that each such statement is in such office on the day specified in K.S.A. 1975 Supp. 25 — 1108. Reports made under this section need not be cumulative.
Plaintiff (Doris Parcell) filed this declaratory judgment action attacking the constitutionality of various provisions of the KCFA and the makeup of the Commission seeking a permanent injunction against the defendants enjoining them from further inquiry and proceedings against her in its attempts to compel her to file a disclosure statement. The district court entered judgment for the defendants on stipulated facts.
The stipulated facts which are mentioned above are a part of the record which is forwarded herewith. The district court’s opinion is submitted herewith as part of the record. Inasmuch as the plaintiff’s contention is that the law creating the Commission is facially unconstitutional under the Kansas Constitution, it is unnecessary to set forth the facts in any further detail. The question submitted is one of pure law.
THE PARTIES’ CONTENTIONS
The plaintiff’s argument is that the Commission in its present form in and of itself violates the principle of separation of powers because although there is a majority appointed by members of the legislature, it functions in a predominantly executive manner. Plaintiff argues that this constitutes usurpation of executive power by the legislative department of government and thereby violates the Kansas Constitution. Plaintiff relies on Kansas cases and also on Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).
The defendants contend that the Act here in question is constitutional under Kansas law for the reason that a perfect separation of powers is not required by the Constitution or laws of Kansas, and that neither in form nor in substance does the Act constitute a usurpation by the legislature, which is the accepted test enunciated in State ex rel. Schneider v. Bennett, 219 Kan. 285, 287, 547 P.2d 786, 790 (1976).
SUBMISSION
Accordingly, the clerk of this court is directed forthwith and without delay to transmit a copy of this Certification to counsel for all parties to the proceedings in this court. The clerk shall also submit to the Supreme Court of the State of Kansas a certified copy of this Certification together with copies of the briefs filed in this court by the parties and either the original or a copy of the record as filed in this court by the clerk of the United States District Court for the District of Kansas in this appeal.
Jurisdiction of the total case, with the exception of this submission, is retained by the court pending disposition of the submitted question by the State of Kansas.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_origin
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
EWING v. BLACK.
No. 10723.
United States Court of Appeals Sixth Circuit.
Feb. 2, 1949.
Melvin Blumenthal, of Baltimore, Md. (H. G. Morison, of Washington D. C., Ward Hudgins and S. E. Wasson, both of Nashville, Tenn., on the brief; Edward H. Hickey, Vincent P. Russo, Leonard B. Zeisler and Robert Hannings, all of Washington, D. C., of counsel), for appellant.
Judson Harwood, of Nashville, Tenn. (Judson Harwood and Cecil Sims, both of Nashville, Tenn., on the brief), for appellee.
' Before'HICKS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.
MARTIN, Circuit Judge.
The appellee, Robert W. Black, of Nashville, Tennessee, was employed from January 1, 1937, to February, 1943, by Gladstone Brothers of New York, manufacturers of clothing for men and boys. He was a commission salesman assigned to a definite territory.
In 1937, Black complied with the request of his employers that he procure a social security number, so that they might report the amount of commissions paid him and make payment of social security taxes due thereon to the Bureau of Internal Revenue. The employers made regular deductions at the lawful percentage rate from his wage commissions, but at no time reported officially any wages paid him or any amounts deducted from his wages for social security taxes, and made no remittances on his account to the Bureau of Internal Revenue, as required by law.
Appellee had no knowledge that the commissions paid him by Gladstone Brothers had not been reported to the social security administration until, upon attaining age 65, he filed an application for benefits under the Social Security Act, 42 U.S.C.A. § 301 et seq. When informed by the Nashville field office manager of the Social Security Board, in April 1946, that the records of the board showed no postings whatever of any wages to his credit, Black wrote Gladstone Brothers, disclosing to them the information which he had received. The employers replied that they had always considered him an independent contractor on whom no taxes need be withheld; and that their purpose in making social security deductions on the wages paid him was that it would not then be necessary for them to malee deductions at one time for all amounts due him, should it be decided that he was an employee. He was, of course, surprised, inasmuch as he had assumed that because regular deductions had been made from his wages for social security purposes his employers had made the required reports and paid the proper taxes on his behalf.
About two and a half months later, Gladstone Brothers mailed Black a check for $85.26, stating that this represented the monies which had been withheld for social security purposes; and that they had understood him to be classified as an independent agent “not subject to social security.” The appellee had been paid commission wages of $50 or more in each of 25 calendar quarters to the total amount of $8,626.93, thus qualifying him for primary insurance benefits under section 202(a) of the Social Security Act, as a fully insured individual who has attained age 65 and has filed application for primary insurance benefits.
The application of appellee for these benefits was made on June 7, 1946, and was denied three and a half months later by the Bureau of Old-Age and Survivors Insurance of the Social Security Administration, Federal Security Agency. The determination by the bureau that the claimant was not a “fully insured individual” at the time of his application was based on the assertion that the amounts earned by him prior to January 1, 1942, could not be included in his wage record, in consequence of the provisions of section 205(c) (2) of the Social Security Act, which provides: “After the expiration of the fourth calendar year following any year in which wages were paid or are alleged to have been paid an individual, the records of the Board as to the wages of such individual for such year and the periods of payment shall be conclusive * * Section 405(c) (2), Title 42 U.S.C.A.
Appellee requested and obtained a hearing before a. Referee of the Appeals Council of the Social Security Administration. H^ was the only witness who testified at that hearing, but documentary evidence was received. The finding was made by the Referee that an employer-employee relationship between Gladstone Brothers and Black had existed continuously from January 1, 1937, to the termination of his services in 1943, inasmuch as the proof showed conclusively that his employers not only had the right to control his services, but had exercised such control as a matter of fact.
The Referee sustained the ruling of the Bureau that the remuneration received by appellee from his employers constitutes wages; and found that the employers had made regular deductions from his commissions for social security purposes, but had at no time reported the amounts paid him, nor had they remitted any taxes affecting him to the Bureau of Internal Revenue. The official further found no evidence in the record which would indicate that the Social Security Administration had notice of Black’s employment, or that he was being paid wages, “until just before April 1946.” The Referee stated that, this being true, section 205(c) (2) of the Social Security Act, as amended, is applicable, with the resultant that the Social Security Administration has no lawful authority to credit the claimant with wages paid him by Gladstone Brothers prior to January 1, 1942, unless that firm, “in accordance with the provisions of section 205(c) (4), should report such wages and remit the taxes thereon to the Collector of Internal Revenue.”
It was asserted by the Referee that in case such report and remittance were made, the Social Security Administration could revise its wage records to conform to the tax returns made to the Bureau of Internal Revenue, thereupon crediting claimant’s wage account with the total wages paid him, and could also credit him with 25 quarters of coverage. Gladstone Brothers failed to take any such action in behalf of Black.
Conceding that Black “a man of intelligence and absolutely sincere in his intentions,” had been misled by his employers to the deprival of his benefit status through no fault of his- own, “as he had every reason to believe that his employers were making timely reports,” the Referee, nevertheless, held that, though regrettable, Black has no remedy. The concluding paragraph of the .Referee’s decision states that the claimant can be credited only with wages paid subsequent to 1941 in the amount of $2,864.51, covering only six quarters; and .that, inasmuch as the claimant is required to have had 15 quarters of coverage, Black was not a fully insured individual when he filed his application and, accordingly, is not entitled to the primary insurance benefits for which he applied.
The request of appellee to the Appeals Council of the Social Security Administration to review the Referee’s decision was denied; and, in conformity with the practice of the Federal Security Administrator, the decision of the Appeals Council became his final decision. In due time and in compliance with the right granted him in section 205(g) of the Social Security Act, as amended, section 405(g), Title 42 U.S.C.A., appellee instituted this action in the United States District Court for the Middle District of Tennessee to review and reverse the administrative decision. He prayed that the Federal Security Administrator and the Commissioner for Social Security be required to cause payments, based on his. earnings including the wages paid him by Gladstone Brothers, to be made him according to the provisions of the Social Security Act. Other and further relief as may be just and equitable was also prayed. Appellee filed a motion for summary judgment on the pleadings, on the admitted facts therein contained. The district court granted his motion.
The final judgment entered remanded the cause to the Federal Security Administrator with directions to him “to credit the plaintiff on his wage records ■ with the amount, of wages paid to him by Gladstone, Brothers Company during the years 1937, 1938 and 1939 and to compute the amount of benefits to which he is entitled, upon the basis of such wage record and for further proceedings in conformity with section 205 (i) and the other applicable provisions of Title II of the Social Security Act, as amended.”
The district court’s decision was grounded upon the opinion, expressed orally, that the four-year period provided for in section 205(c) (2) of the Act is not retroactive and was intended to start with the year 1940; and that it could not be considered to be a four-year statute of limitations for any period of time prior to 1940.
Many finely drawn challenges to the correctness of the district court’s decision have been .presented by the government in its brief, as well as in its oral argument. In our analysis of the case, we find it unnecessary to pass upon all the propositions argued.
Whether or not the provisions of section 205(c) (2) of the Social Security Act, if applied generally, are constitutionally infirm need not be decided here. Moreover, we deem it unimportant here whether the pertinent section is, in general, a qualification of a right newly created by the Act of which the section is a part. Therefore, we have considered but will not discuss cases cited by the government to the point. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Pennsylvania Company for Insurances, etc. v. Deckert, 3 Cir., 123 F.2d 979, 985; Matheny v. Porter, 10 Cir., 158 F.2d 478; Damiano v. Pennsylvania R. Co., 3 Cir., 161 F.2d 534; Madden v. Lancaster County, 8 Cir., 65 F. 188. Not long ago, this court manifested its accord with the principle of these authorities in two opinions upon the subject matter, neither of which is cited by the government although certiorari was denied in both cases: Maki v. George R. Cooke Co., 124 F.2d 663, 146 A.L.R. 1352, with annotation, certiorari denied 316 U.S. 686, 62 S.Ct. 1274, 86 L.Ed. 1758; Wilson v. Massengill, 124 F.2d 666, certiorari denied, 316 U.S. 686, 62 S.Ct. 1274, 86 L.Ed. 1758.
Nor. are w.e concerned with whether the section is reasonable, or unreasonable, as to the time limit within which the admin-
istrator’s wage records for the period from 1937 through 1939 may be revised. We deem it unnecessary to discuss the argument of the government that “if section 205(c) (2) cannot be construed retroactively it forbids revision of the administrator’s wage records for the years 1937-1939, inclusive, after February 29, 1944.” We have not neglected, however, to read and consider the authorities cited: Sohn v. Waterson, 17 Wall. 596, 21 L.Ed. 737; Carscadden v. Territory of Alaska, 9 Cir., 105 F.2d 377, 379; Philadelphia Nat. Bank v. Raff, 6 Cir., 76 F.2d 843, certiorari denied 296 U.S. 601, 56 S.Ct. 118, 80 L.Ed. 426; The Fred Smartley, Jr., 4 Cir., 108 F.2d 603; American Mut. Liability Ins. Co., of Boston v. Lowe, 3 Cir., 85 F.2d 625.
Our concern is with the exact issue which we must decide. That issue does not involve a revision of the records of the Board. This is not a case of challenging the conclusiveness of records. There are no records to challenge. The Board has none at all pertaining to Black. The employer wrongfully failed to furnish them; but records affecting Black can now easily, accurately and completely be made by the Board from the exhibits introduced in evidence in this case. Section 205(c) (2) of the Act, reasonably construed, constitutes no bar to the Board’s receiving these records and making them official, so that the employee may obtain his just benefits under the Social Security Act.
It will be observed that the provision of section 205(c) (1), section 405(c) (1), Title 42, U.S.G.A.j that the absence of an entry as to an individual’s wages in the Board’s records for any period shall be evidence that no wages were paid such individual in such period does not carry with it the conclusive^ ness of such records. The section merely says that the absence of entries shall be “evidence” that no wages were paid. It does not say that such absence shall be conclusive evidence. To the contrary, in section 205(c) (2), the records of the Board [which we think means records made, not omitted, by the Board], are expressly made “conclusive.”
Appellant contends that, even though Black did not know that the administrator’s wage records for the three years prior to 1940 failed to show that wages had been paid him by Gladstone Brothers, and notwithstanding the fact that he was led by his employers’ actions to believe that the wages paid him had been reported to the Commissioner of Internal Revenue, he had the right, under section 205(c) (3), to request an opportunity to prove that the wages had been paid him during the crucial years and failed to exercise that right, bringing upon himse.lf, thereby, the bar of section 205(c) (2). We cannot accede to* this reasoning. There was no suspicious circumstance to put him upon notice that his employers had been derelict in performing their lawful duty in obedience to the Social Security Act. Why should he make inquiry when he was justified in feeling secure?
The beneficent purpose of Congress in the enactment of the Social Security Act must not be ignored. After painstaking investigation and elaborate research through experts, Congress reached the conclusion, upon which it acted, that the award of old-age benefits is conducive to the general welfare. See opinion of Mr. Justice Cardozo in Helvering v. Davis, 301 U.S. 619, 641-645, 57 S.Ct. 904, 909, 81 L.Ed. 1307, 109 A.L.R. 1319, where the legislative history of the Social Security Act is reviewed. In his logical reasoning, the eminent jurist did not strain eloquence when he said: “The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey’s end is near.”
In Social Security Board v. Nierotko, 327 U.S. 358, 364, 66 S.Ct. 637, 640, 9C L.Ed. 718, 162 A.L.R. 1445, affirming our decision in 149 F.2d 273, the Supreme Court, asserting that the “purpose of the Federal Old Age Benefits of the Social Security Act is to provide funds through contributions by employer and employee for the decent support of elderly workmen who have ceased to labor”, gave a liberal interpretation to the Act; and held that “back pay” awarded under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., to an employee is to be treated under the Social Security Act as wages for which the employee is entitled to credit on his Old Age and. Survivors Insurance Account. This holding was made despite a contrary administrative determination by the Social Security Board.
Again, in United States v. Silk, 331 U.S. 704, 712, 67 S.Ct. 1463, 1467, 91 L.Ed. 1757, the Supreme Court made it clear that the Social Security Act must be liberally construed: “As the federal social security legislation is an attack On recognized evils in our national economy, a constricted interpretation of the phrasing by the courts would not comport with its purpose. Such an interpretation would only make for a continuance, to a considerable degree, of the difficulties for which the remedy was devised and would invite adroit schemes by some employers and employees to avoid the immediate burdens at the expense of the benefits sought by the legislation. These considerations have heretofore guided our construction of the Act.”
Attorneys for Black insist, and the district court ■ agreed, that Congress did not intend that the limitation contained in section 205(c) (2) should apply to.wage records for the years 1937-1939, inclusive. Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858, is cited to the proposition that a law is presumed, in the absence of clear expression to the contrary; to operate prospectively. Sections 204(a) and 204(b) of the Act, sections 404(a) and (b), Title 42, U.S.C.A. relating to correction of errors with respect to payments to an individual are pointed to as indicative that Congress did not, intend that section 205(c) (2) should apply to wage records prior to the 1939 amendment.'
We cannot accept such interpretation as sound. We think it apparent that the purpose of Congress was to give conclusiveness to the records for the years 1937 to 1939, inclusive, after the period of time and upon the conditions prescribed in the statute; but, where no records at all have been kept for those years relating to a particular employee, who had conformed to all lawful requirements which would .qualify him to enjoy the benefits of the Social Security Act and with reason rested secure in the belief that his employers had likewise complied, the case is different. As we have attempted to show, it would defeat the obvious purposes of the Social Security Act and give judicial sanction to gross injustice to hold that, in the detailed circumstances of this case, the employee must be deprived of his social security old-age benefits.
Accordingly, we affirm the judgment; but we have attempted to make clear that we are not in accord with the reasoning upon which the district court based its decision.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_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
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, AFL-CIO, and Cincinnati Local American Federation of Television and Radio Artists, AFL-CIO, Respondents.
No. 14245.
United States Court of Appeals Sixth Circuit.
Jan. 19, 1961.
Hans J. Lehmann, National Labor Relations Board, Washington, D. C., Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Melvin J. Wells, Attorney, National Labor Relations Board, Washington, D. C., on brief for petitioner.
Milton H. Schmidt, Cincinnati, Ohio, Mortimer Becker, New York City, on brief for respondents.
Before MILLER, CECIL and O’SULLIVAN, Circuit Judges.
PER CURIAM.
This case is before the Court upon a petition of the National Labor Relations Board to enforce its order of December 17, 1959, against the respondents.
At the conclusion of the oral argument, counsel for the Board confessed a procedural error. This was subsequently confirmed in a supplemental memorandum submitted on behalf of the Board. The Trial Examiner refused to require pre-trial statements taken by the General Counsel of witnesses Vernon S. Thornburgh and Gil Sheppard to be given to counsel for the respondents. Excerpts of the testimony of Vernon S. Thornburgh are in the appendix of the petitioner, at pp. 251a to 274a, and in the appendix of the respondents at pp. 90b to 133b. Excerpts of Gil Sheppard’s testimony appear in the petitioner’s appendix, at pp. 274a to 294a, and in the respondent’s appendix at pp. 133b to 154b.
The production of such statements, at the time of the hearing, before the Trial Examiner, was prohibited by regulation of the Board. Subsequently the Board reversed its position, and following N. L. R. B. v. Adhesive Products Corp., 2 Cir., 258 F.2d 403, held that the principle announced in Jeneks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, was applicable to Board proceedings. App. 29 U.S.C.A. Rules and Regulations, Section 102.95. In conformity with this changed position, counsel for the Board, on its behalf, confessed procedural error. To correct this error, they request the Court to disregard the testimony of witnesses Thornburgh and Sheppard. Counsel advance the argument that without the testimony of these two witnesses there is still sufficient evidence to support the order of the Board.
In considering a petition for the enforcement of an order, our function is to review the record of the proceedings before the Board, its findings of fact and conclusions of law. This Court cannot reverse or modify an order of the Board on questions of fact, unless there is a lack of substantial evidence to support it. Sec. 160(e), Title 29 U. S.C.A.
We cannot speculate on what findings the Board would have made without the testimony of Thornburgh and Sheppard. For us to weigh the evidence without the testimony of these two witnesses would put us in a position of making original findings of fact instead of reviewing the findings of the Board.
The case will be remanded to the Board with instructions to correct its procedural error in a rehearing of the charges of unfair labor practices, or to make its findings of fact upon the evidence exclusive of the testimony of witnesses Thornburgh and Sheppard.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Georgia CUNNINGHAM, for herself, and as Personal Representative of the Estate of Mitchell Cunningham, Deceased, and as Guardian Ad Litem for the Minor Children of the Parties, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 85-3791.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 13, 1986.
Decided April 15, 1986.
Leonard J. Haxby, Butte, Mont., for plaintiff-appellant.
Phyllis Jackson Pyles, Dept, of Justice, Washington, D.C., for defendant-appellee.
Before WALLACE and SKOPIL, Circuit Judges, and HENDERSON, District Judge.
The Honorable Thelton E. Henderson, United States District Judge for the Northern District of California, sitting by designation.
SKOPIL, Circuit Judge:
Georgia Cunningham appeals from a district court’s dismissal of her cause of action brought under the Federal Torts Claims Act, 28 U.S.C. § 2674 (“FTCA”). We affirm.
FACTS AND PROCEEDINGS BELOW
Mitchell Cunningham was an employee at the Stauffer Chemical Company Phosphate Plant (“Stauffer Plant") in Silverbow County, Montana. On August 14, 1982 Cunningham was sprayed with raw phosphorous. He died the following day.
The Stauffer Plant is subject to inspection and regulation by the Occupational Safety and Health Administration (“OSHA”), Department of Labor. OSHA conducted two safety and ten health inspections of the Stauffer Plant between 1973 and 1982. The Stauffer Plant received no OSHA citations prior to 1982. Thereafter, OSHA conducted a post-accident inspection and cited the Stauffer Plant for several deficiencies.
Georgia Cunningham brought a cause of action against the United States under the FTCA, contending OSHA safety inspectors failed to exercise reasonable care in performing their inspections of the Stauffer Plant. She argued the deficiencies found in the post-accident inspection would have been identified and remedied by the plant prior to the fatal accident if OSHA had conducted its prior inspections properly.
The district court, 625 F.Supp. 1016, granted the government’s motion to dismiss on the grounds that the action was barred by the discretionary function exception. Cunningham appeals.
DISCUSSION
A party may bring a cause of action against the United States only to the extent it has waived its sovereign immunity. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976). A party bringing a cause of action against the federal government bears the burden of demonstrating an unequivocal waiver of immunity. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984).
A court lacks jurisdiction over a cause of action if the federal government’s alleged negligence is “based on the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). See Dalehite v. United States, 346 U.S. 15, 33, 73 S.Ct. 956, 966, 97 L.Ed. 1427 (1953).
The nature of the conduct involved governs whether the so-called discretionary function exception applies. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (“Varig Airlines"), 467 U.S. 797, 104 S.Ct. 2755, 2764-65, 81 L.Ed.2d 660 (1984). “[T]he basic inquiry ... is whether the challenged acts of a government employee — whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liability.” Id. The purpose of the exception is to prevent judicial second-guessing of administrative decisionmaking based on social, economic, and political policy. Id. 104 S.Ct. at 2765. “ ‘[I]f judicial review would encroach upon this type of balancing done by an agency, then the exception would apply.’ ” Chamberlin v. Isen, 779 F.2d 522, 523 (9th Cir.1985) (quoting Begay v. United States, 768 F.2d 1059, 1064 (9th Cir.1985)).
Georgia Cunningham claims OSHA was negligent in conducting its inspections. OSHA safety inspections are similar to those discussed in Varig Airlines. In Varig Airlines, the Civil Aeronautics Agency allegedly negligently inspected and certified an aircraft that did not meet minimum fire safety standards. 104 S.Ct. at 2758. The Supreme Court found that a negligent failure to inspect falls within the discretionary function exception. Varig Airlines, 104 S.Ct. at 2768. The Court emphasized that the manufacturer has “the duty to ensure that an aircraft conforms to FAA safety regulations ... while the FAA retains the responsibility for policing compliance.” Id. at 2768. The same is true for companies operating under the directives of OSHA. The employer has the statutory responsibility for maintaining a safe workplace. 29 U.S.C. § 654(a).
This court, in Natural Gas Pipeline Co. v. United States, 742 F.2d 502, 504-05 (9th Cir.1984) found that FAA’s alleged failure to discover aircraft defects and to adequately monitor aircraft safety was protected by the discretionary function exception. The same is true in this case for OSHA’s alleged failure to adequately monitor the Stauffer Plant. Both OSHA’s decision to review the employer’s compliance with safety standards and its actual inspections of the Stauffer Plant are discretionary functions. Congress has left to OSHA’s discretion the establishment of safety standards and the enforcement of those standards. “When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.” Varig Airlines, 104 S.Ct. at 2768. See also Be-gay, 768 F.2d at 1064 (decision whether to implement safety regulations in uranium mines is within Varig’s coverage).
The acts of OSHA inspectors in executing agency directives are protected by the discretionary function exception. See Varig Airlines, 104 S.Ct. at 2768; Dalehite, 346 U.S. at 36 (“acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable”); see also Begay, 768 F.2d at 1064.
AFFIRMED.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_circuit
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
MUTUAL BENEFIT HEALTH & ACCIDENT ASS’N v. McCRANIE.
No. 12637.
United States Court of Appeals Fifth Circuit.
Dec. 30, 1949.
W. Colquitt 'Carter, Atlanta, Ga., Larry E. Pedrick, Waycross, Ga., for appellant.
Benjamin Smith, Jr., Waycross, Ga., for appellee.
Before HOLMES, WALLER, and SIBLEY, Circuit Judges.
WALLER, Circuit Judge.
In application for two insurance policies, one for $1,000.00 and one for $2,500.00, dated May 7 and May 10, 1947, the applicant, by his answers to Questions 13-17, stated that he was sound physically and mentally, that he had never had any disease of the brain or nervous system, had not received any medical or surgical treatment or had any local or constitutional disease within the past five years, had never been operated on by a physician or surgeon, and that he understood and agreed that no insurance would be effected until the policy was accepted by him while in good health and free from injury. (R. 13, 14.) Relying upon the applications the policies were issued.
Within less than sixty days after these policies were issued the insured was killed in an automobile accident, and upon investigation the Company found that the insured had within two months prior to his application been medically discharged from the United States Army with a disability rating of 100%. The Army Medical Department recommended such discharge on the following diagnosis: “Concussion, cerebral, mild, accidentally incurred when patient fell out of a swing at a carnival, Badtoelz, Germany, 25 July 1946.” It appears from the official files of the Veterans Administration that within twelve months prior to the application the insured had fallen from a swing at a carnival in Germany and received an injury which was subsequently diagnosed as cerebral concussion. Shortly after this diagnosis he was returned to duty. Approximately a month later he was hospitalized because of severe headaches, weakness in his right extremities, and faintness. For diagnostic purposes exploratory holes were “burred” in his head in two places while he was under G. O. E. anesthesia. He was soon released from the hospital but his infirmities continued and shortly thereafter he was medically discharged.
Armed with these facts the Insurance Company sought a declaratory judgment as to its liability under the two policies. The Company moved for a directed verdict. This motion was overruled and the cause was submitted to the jury, who returned a verdict for the maximum liability under the policies. The Plaintiff’s motion for judgment non obstante veredicto was denied.
The law of Georgia is clear on the question of the effect of misrepresentations on insurance policies. The Code of Georgia provides:
“56-820. (2479) Application, good faith in making. — Every application for insurance shall be made in the utmost good faith, and the representations contained in such application shall be considered as covenanted to be true 'by the applicant. Any variation by which the nature, extent, or character of the risk is changed shall void the policy.”
“56-821. (2480) Misrepresentation, effect of. — Any verbal or written representations of facts by the insured to induce the acceptance of the risk, if material, must be true, or the policy shall be void. If, however, the party shall have no knowledge, but shall state on the representation of others, bona fide, and shall so inform the insurer, the falsity of the information shall not void the policy.”
The appellate courts of Georgia have held in an unbroken line that a material misrepresentation as to a known fact will avoid a policy if such misrepresentation changes the character or extent or nature of the risk. See: Sovereign Camp of W. O. W. v. Reid, 53 Ga.App. 618, 186 S.E. 759; Gabriles et al. v. Sun Life Assur. Co. of Canada, 70 Ga.App. 6, 27 S.E.2d 111; Preston v. National Life & Acc. Ins. Co., 196 Ga. 217, 26 S.E.2d 439, 450, 148 A.L.R. 897. In the last cited case the Supreme Court of Georgia, speaking through Justice Bell, states: “The rule is contained in the Code, and as we have seen, may be stated in four simple words, substantial increase in risk, but its application will of course depend upon the facts of each particular case, which will necessarily vary and cannot be anticipated further than has been done in such statute.” (Emphasis added.) The Court in that case used the word “substantial” for the first time and the Appellant contends that it establishes a new method of ascertaining the materiality of misrepresentations in Georgia. It seems always to have been the law that slight or unimportant misrepresentations will not avoid the policy. See Metropolitan Life Insurance Co. v. Busby, 42 Ga.App. 808, 157 S.E. 354.
The courts of Georgia have held that misstatements may be material to risk although insured did not die of the disease with reference to which it is contended false answers were made. Jefferson Standard Life Insurance Co. v. Fendley, 55 Ga.App. 618, 190 S.E. 806. It has been the law, and it seems now to be, that where uncontroverted facts show misstatements or materially fraudulent concealment in answer to questions in application for life insurance, verdict in favor of insurer must be rendered. National Life & Accident Ins. Co. v. Strother, 53 Ga.App. 241, 185 S.E. 373; Rhodes v. Metropolitan Ins. Co., 5 Cir., 172 F.2d 183.
The answers quoted were clearly false, and without doubt were material and substantially increased the risk. The defendant was entitled to its requested verdict.
Reversed and remanded.
. The following questions and answers are taken from the application for insurance:
“13. Are you sound physically and mentally? Answer * * * Yes.
“14. Have you ever had any of the following diseases? * * * any disease of the brain * * * Name disease, dates, and length of disability. No.
“15. Have you received medical or surgical treatment or had any local or constitutional disease not mentioned above, within the last five years? Answer as to each. No.
“16. Have you ever been operated on by a physician or surgeon? No. * * *
“17. Do you understand and agree that no insurance will be effected until the policy is accepted by you while in good health and free from injury? Yes.”
. Prior to discharge this injury was diagnosed as “concussion, cerebral, severe”.
. The sections above quoted relate to fire insurance but in the following chapter of the Code, relating to life insurance, Section 56-911 states: “The principles before stated as to fire insurance, wherever applicable, shall be equally the law of life insurance.”
. “A ‘material representation’ is one that would influence a prudent insurer in determining whether or not to accept the risk, or in fixing the amount of the premium in the event of such acceptance.” Life Ins. Co. of Virginia v. Pate, 23 Ga.App. 232, 97 S.E. 874.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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sc_petitioner
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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 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.
MARYLAND et al. v. WIRTZ, SECRETARY OF LABOR, et al.
No. 742.
Argued April 23, 1968.
Decided June 10, 1968.
Alan M. Wilner, Assistant Attorney General of Maryland, and Charles Alan Wright argued the cause for appellants. With Mr. Wilner on the brief for appellant the State of Maryland et al. were the Attorneys General for their respective States as follows: Francis B. Burch of Maryland, Crawford C. Martin of Texas, MacDonald Gallion of Alabama, Darrell F. Smith of Arizona, Joe Purcell of Arkansas, Duke W. Dunbar of Colorado, David Buckson of Delaware, Earl Faircloth of Florida, Bert T. Kobayashi of Hawaii, William G. Clark of Illinois, Richard C. Turner of Iowa, Robert C. Londerholm of Kansas, James S. Erwin of Maine, Elliot L. Richardson of Massachusetts, Joe T. Patterson of Mississippi, Norman H. Anderson of Missouri, Clarence A. H. Meyer of Nebraska, Arthur J. Sills of New Jersey, Boston E. Witt of New Mexico, T. Wade Bruton of North Carolina, Helgi Johanneson of North Dakota, William B. Saxbe of Ohio, G. T. Blankenship of Oklahoma, Daniel R. McLeod of South Carolina, Frank L. Farrar of South Dakota, James L. Oakes of Vermont, Robert Y. Button of Virginia, and James E. Barrett of Wyoming; and A. J. Carubbi, Jr., Executive Assistant Attorney General of Texas, Hawthorne Phillips, Assistant Attorney General of Texas, and James V. Noble, Assistant Attorney General of New Mexico. With Mr. Wright on the brief for appellant the State of Texas were Messrs. Martin, Carubbi, and Phillips, and Nola White, First Assistant Attorney General. Cecil A. Morgan filed a brief for appellant Fort Worth Independent School District.
Solicitor General Griswold argued the cause for ap-pellees. With him on the brief were Assistant Attorney General Weisl, Louis F. Claiborne, John S. Martin, Jr., and Morton Hollander.
Briefs of amici curiae, urging affirmance, were filed by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations, and by Henry Kaiser and Ronald Rosenberg for the American Federation of State, County, and Municipal Employees, AFL-CIO.
Mr. Justice Harlan
delivered the opinion of the Court.
As originally enacted, the Fair Labor Standards Act of 1938 required every employer to pay each of his employees “engaged in commerce or in the production of goods for commerce” a certain minimum hourly wage, and to pay at a higher rate for work in excess of a certain maximum number of hours per week. The Act defined the term “employer” so as to exclude “the United States or any State or political subdivision of a State....” This case involves the constitutionality of two sets of amendments to the original enactment.
In 1961, Congress changed the basis of employee coverage: instead of extending protection to employees individually connected to interstate commerce, the Act now covers all employees of any “enterprise” engaged in commerce or production for commerce, provided the enterprise also falls within certain listed categories. In 1966, Congress added to the list of categories the following:
“(4) is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for the mentally or physically handicapped or gifted children, an elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit).”
At the same time, Congress modified the definition of “employer” so as to remove the exemption of the States and their political subdivisions with respect to employees of hospitals, institutions, and schools.
The State of Maryland, since joined by 27 other States and one school district, brought this action against the Secretary of Labor to enjoin enforcement of the Act insofar as it now applies to schools and hospitals -operated by the States or their subdivisions. The plaintiffs made four contentions. They argued that the expansion of coverage through the “enterprise concept” was beyond the power of Congress under the Commerce Clause. They contended that coverage of state-operated hospitals and schools was also beyond the commerce power. They asserted that the remedial provisions of the Act, if applied to the States, would conflict with the Eleventh Amendment. Finally, they urged that even if their constitutional arguments were rejected, the court should declare that schools and hospitals, as enterprises, do not have the statutorily required relationship to interstate commerce.
A three-judge district court, convened pursuant to 28 U. S. C. § 2282, declined to issue a declaratory judgment or an injunction. Three opinions were written. Judges Winter and Thomsen, constituting the majority, concluded for different reasons that the adoption of the “enterprise concept” of coverage and the extension of coverage to state institutions could not be said, on the face of the Act, to exceed Congress’ power under the Commerce Clause. Both declined to consider the Eleventh Amendment and statutory contentions. Judge Northrop dissented, concluding that the amendments exceeded the commerce power because they transgressed the sovereignty of the States.
We noted probable jurisdiction of the plaintiffs’ appeal, 389 U. S. 1031. For reasons to follow, we affirm the judgment of the District Court.
I.
We turn first to the adoption in 1961 of the “enterprise concept.” Whereas the Act originally extended to every employee “who is engaged in commerce or in the production of goods for commerce,” it now protects every employee who “is employed in an enterprise engaged in commerce or in the production of goods for commerce.” Such an enterprise is defined as one which, along with other qualifications, “has employees engaged in commerce or in the production of goods for commerce....” Thus the effect of the 1961 change was to extend protection to the fellow employees of any employee who would have been protected by the original Act, but not to enlarge the class of employers subject to the Act.
In United States v. Darby, 312 U. S. 100, this Court found the original Act a legitimate exercise of congressional power to regulate commerce among the States. Appellants accept the Darby decision, but contend that the extension of protection to fellow employees of those originally covered exceeds the commerce power. We conclude, to the contrary, that the constitutionality of the “enterprise concept” is settled by the reasoning of Darby itself and is independently established by principles stated in other cases.
Darby involved employees who were engaged in producing goods for commerce. Their employer contended that since manufacturing is itself an intrastate activity, Congress had no power to regulate the wages and hours of manufacturing employees. The first step in the Court’s answer was clear: “[Congress may] by appropriate legislation regulate intrastate activities where they have a substantial effect on interstate commerce.”
The next step was to discover whether such a “substantial effect” existed. Congress had found that substandard wages and excessive hours, when imposed on employees of a company shipping goods into other States, gave the exporting company an advantage over companies in the importing States. Having so found, Congress decided as a matter of policy that such an advantage in interstate competition was an “unfair” one, and one that had the additional undesirable effect of driving down labor conditions in the importing States. This Court was of course concerned only with the finding of a substantial effect on interstate competition, and not with the consequent policy decisions. In accepting the congressional finding, the Court followed principles of judicial review only recently rearticulated in Katzenbach v. McClung, 379 U. S. 294, 303-304:
"Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators... have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.”
There was obviously a “rational basis” for the logical inference that the pay and hours of production employees affect a company’s competitive position.
The logical inference does not stop with production employees. When a company does an interstate business, its competition with companies elsewhere is affected by all its significant labor costs, not merely by the wages and hours of those employees who have physical contact with the goods in question. Consequently, it is not surprising that this Court has already explicitly recognized that Congress’ original choice to extend the Act only to certain employees of interstate enterprises was not constitutionally compelled; rather, Congress decided, at that time, “not to enter areas which it might have occupied [under the commerce power].” Kirschbaum Co. v. Walling, 316 U. S. 517, 522.
The “enterprise concept” is also supported by a wholly different line of analysis. In the original Act, Congress stated its finding that substandard labor conditions tended to lead to labor disputes and strikes, and that when such strife disrupted businesses involved in interstate commerce, the flow of goods in commerce was itself affected. Congress therefore chose to promote labor peace by regulation of subject matter, wages, and hours, out of which disputes frequently arise. This objective is particularly relevant where, as here, the enterprises in question are significant importers of goods from other States.
Although the Court did not examine this second objective in Darby, other cases have found a “rational basis” for statutes regulating labor conditions in order to protect interstate commerce from labor strife. The National Labor Relations Act had been passed because
“[t]he denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce....”
In Labor Board v. Jones & Laughlin, 301 U. S. 1, this Court held that the National Labor Relations Act (NLRA) was within the commerce power. The essence of the decision was contained in two propositions: “the stoppage of those [respondent’s] operations by industrial strife would have a most serious effect upon interstate commerce,” id., at 41; and “[experience has abundantly-demonstrated that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace.” Id., at 42.
The Fair Labor Standards Act, including the present “enterprise” definition of coverage, may also be supported by two propositions. One is identical with the first proposition supporting the NLRA: strife disrupting an enterprise involved in commerce may disrupt commerce. The other is parallel to the second proposition supporting the NLRA: there is a basis in logic and experience for the conclusion that substandard labor conditions among any group of employees, whether or not they are personally engaged in commerce or production, may lead to strife disrupting an entire enterprise.
Whether the “enterprise concept” is defended on the “competition” theory or on the “labor dispute” theory, it is true that labor conditions in businesses having only a few employees engaged in commerce or production may not affect commerce very much or very often. Appellants therefore contend that defining covered enterprises in terms of their employees is sometimes to permit “the tail to wag the dog.” However, while Congress has in some instances left to the courts or to administrative agencies the task of determining whether commerce is affected in a particular instance, Darby itself recognized the power of Congress instead to declare that an entire class of activities affects commerce. The only question for the courts is then whether the class is “within the reach of the federal power.” The contention that in Commerce Clause cases the courts have power to excise, as trivial, individual instances falling within a rationally defined class of activities has been put entirely to rest. Wickard v. Filburn, 317 U. S. 111, 127-128; Polish Alliance v. Labor Board, 322 U. S. 643, 648; Katzenbach v. McClung, supra, at 301. The class of employers subject to the Act was not enlarged by the addition of the enterprise concept. The definition of that class is as rational now as it was when Darby was decided.
II.
Appellants’ second contention is that the commerce power does not afford a constitutional basis for extension of the Act to schools and hospitals operated by the States or their subdivisions. Since the argument is made in terms of interference with “sovereign state functions,” it is important to note exactly what the Act does. Although it applies to “employees,” the Act specifically exempts any “employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools)....” We assume, as did the District Court, that medical personnel are likewise excluded from coverage under the general language. The Act establishes only a minimum wage and a maximum limit of hours unless overtime wages are paid, and does not otherwise affect the way in which school and hospital duties are performed. Thus appellants’ characterization of the question in this case as whether Congress may, under the guise of the commerce power, tell the States how to perform medical and educational functions is not factually accurate. Congress has “interfered with” these state functions only to the extent of providing that when a State employs people in performing such functions it is subject to the same restrictions as a wide range of other employers whose activities affect commerce, including privately operated schools and hospitals.
It is clear that labor conditions in schools and hospitals can affect commerce. The facts stipulated in this case indicate that such institutions are major users of goods imported from other States. For example:
“In the current fiscal year an estimated $38.3 billion will be spent by State and local public educational institutions in the United States. In the fiscal year 1965, these same authorities spent $3.9 billion operating public hospitals....
“For Maryland, which was stipulated to be typical of the plaintiff States, 87% of the $8 million spent for supplies and equipment by its public school system during the fiscal year 1965 represented direct interstate purchases. Over 55% of the $576,000 spent for drugs, x-ray supplies and equipment and hospital beds by the University of Maryland Hospital and seven other state hospitals were out-of-state purchases.”
Similar figures were supplied for other States. Strikes and work stoppages involving employees of schools and hospitals, events which unfortunately are not infrequent, obviously interrupt and burden this flow of goods across state lines. It is therefore clear that a “rational basis” exists for congressional action prescribing minimum labor standards for schools and hospitals, as for other importing enterprises.
Indeed, appellants do not contend that labor conditions in all schools and hospitals are without the reach of the commerce power, but only that the Act may not be constitutionally applied to state-operated institutions because that power must yield to state sovereignty in the performance of governmental functions. This argument simply is not tenable. There is no general
“doctrine implied in the Federal Constitution that ‘the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other/ ” Case v. Bowles, 327 U. S. 92, 101.
In the first place, it is clear that the Federal Government, when acting within a delegated power, may override countervailing state interests whether these be described as “governmental” or “proprietary” in character. As long ago as Sanitary District v. United States, 266 U. S. 405, the Court put to rest the contention that state concerns might constitutionally “outweigh” the importance of an otherwise valid federal statute regulating commerce. Congress had imposed statutory limits on the diversion of water from Lake Michigan. A unanimous Court, speaking through Mr. Justice Holmes, declared that the sanitary district’s alleged need for more water than federal law allowed was “irrelevant” because federal power over commerce is “superior to that of the States to provide for the welfare or necessities of their inhabitants.” Id., at 426. See Oklahoma v. Atkinson Co., 313 U. S. 508.
There remains, of course, the question whether any particular statute is an “otherwise valid regulation of commerce.” This Court has always recognized that the power to regulate commerce, though broad indeed, has limits. Mr. Chief Justice Marshall paused to recognize those limits in the course of the opinion that first staked out the vast expanse of federal authority over the economic life of the new Nation. Gibbons v. Ogden, 9 Wheat. 1, 194-195. Mr. Chief Justice Hughes, speaking only one Term after he delivered the opinion for the Court in Jones & Laughlin, supra, put the matter thus:
“The subject of federal power is still ‘commerce,’ and not all commerce but commerce with foreign nations and among the several States. The expansion of enterprise has vastly increased the interests of interstate commerce but the constitutional differentiation still obtains.” Santa Cruz Co. v. Labor Board, 303 U. S. 453, 466.
The Court has ample power to prevent what the appellants purport to fear, “the utter destruction of the State as a sovereign political entity.”
But while the commerce power has limits, valid general regulations of commerce do not cease to be regulations of commerce because a State is involved. If a State is engaging in economic activities that are validly regulated by the Federal Government when engaged in by private persons, the State too may be forced to conform its activities to federal regulation. This was settled by the unanimous decision in United States v. California, 297 U. S. 175. The question was whether a railroad, operated by the State, and entirely within the State, as a nonprofit venture for the purpose of facilitating transportation at a port, was nevertheless subject, like other railroads, to the Safety Appliance Act. The Court first held that although the railroad operated only between points in California, it was within the reach of federal regulation of interstate rail transportation. 297 U. S., at 181-183. The Court then proceeded to consider the claim that the State “is not subject to the federal Safety Appliance Act/’ and reasoned as follows:
“[W]e think it unimportant to say whether the state conducts its railroad in its'sovereign’ or in its 'private’ capacity. That in operating its railroad it is acting within a power reserved to the states cannot be doubted. The only question we need consider is whether the exercise of that power, in whatever capacity, must be in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution.
"[W]e look to the activities in which the states have traditionally engaged as marking the boundary of the restriction upon the federal taxing power. But there is no such limitation upon the plenary power to regulate commerce. The state can no more deny the power if its exercise has been authorized by Congress than can an individual.” 297 U. S., at 183-185 (citations omitted).
See also Board of Trustees v. United States, 289 U. S. 48, where the Court rejected a claim of “state sovereignty” and held that a state university that imported scientific apparatus from abroad could be made to pay import duties imposed pursuant to the power over foreign commerce.
The principle of United States v. California is controlling here. Appellants’ argument that the statute involved there was somewhat more directly and obviously a regulation of “commerce,” and that the state activity involved there was less central to state sovereignty, misses the mark. This Court has examined and will continue to examine federal statutes to determine whether there is a rational basis for regarding them as regulations of commerce among the States. But it will not carve up the commerce power to protect enterprises indistinguishable in their effect on commerce from private businesses, simply because those enterprises happen to be run by the States for the benefit of their citizens.
III.
Appellants raise two further issues, both of which the District Court found it inappropriate to explore fully in a declaratory judgment proceeding. We agree. In each case we conclude that no showing has been made that warrants declaratory or injunctive relief. In neither instance, however, do we mean to preclude future consideration on the facts of individual cases.
The first question is whether the Act violates the States' sovereign immunity from suit guaranteed by the Eleventh Amendment. The Act provides as follows:
“Any employer who violates the provisions of section 206 [wages] or section 207 [hours] of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction... 29 U. S. C. § 216 (b).
The Act also provides for suits by the Secretary of Labor to recover unpaid minimum wages or overtime compensation, 29 U. S. C. § 216 (c) and for injunctive relief against violations, 29 U. S. C. § 217.
Percolating through each of these provisions for relief are interests of the United States and problems of immunity, agency, and consent to suit. Cf. Parden v. Terminal R. Co., 377 U. S. 184. The constitutionality of applying the substantive requirements of the Act to the States is not, in our view, affected by the possibility that one or more of the remedies the Act provides might not be available when a State is the employer-defendant. Particularly in light of the Act's “separability” provision, 29 U. S. C. § 219, we see no reason to strike down otherwise valid portions of the Act simply because other portions might not be constitutional as applied to hypothetical future cases. At the same time, we decline to be drawn into an abstract discussion of the numerous complex issues that might arise in connection with the Act’s various remedial provisions. They are almost impossible and most unnecessary to resolve in advance of particular facts, stated claims, and identified plaintiffs and defendants. Questions of state immunity are therefore reserved for appropriate future cases.
Appellants’ remaining contention presents similar problems. In order to be covered by the Act, an employer hospital or school must in fact have
“employees engaged in commerce or in the production of goods for commerce, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person....” 29 U. S. C. § 203 (s) (1964 ed., Supp. II).
Appellants ask us to declare that hospitals and schools simply have no such employees. The word “goods” is elsewhere defined to exclude “goods after their delivery into' the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.” 29 U. S. C. § 203 (i). Appellants contend that hospitals and schools are the ultimate consumers of the out-of-state products they buy, and hence none of their employees handles “goods” in the statutory sense.
We think the District Court was correct in declining to decide, in the abstract and in general, whether schools and hospitals have employees engaged in commerce or production. Such institutions, as a whole, obviously purchase a vast range of out-of-state commodities. These are put to a wide variety of uses,
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_appfiduc
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
BODELL v. COMMISSIONER OF INTERNAL REVENUE.
No. 3841.
Circuit Court of Appeals, First Circuit.
Nov. 3, 1943.
Richard F. Canning and Ira Lloyd Letts, both of Providence, R. I. (Andrew P. Quinn, of Providence, R. I., on the brief), for petitioner for review.
Joseph M. Jones, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and Helen R. Carloss, Sp. Assts. to the Atty. Gen., and J. P. Wenchel, Chief Counsel, and Ralph F. Staubly, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for Commissioner.
Before MAHONEY, and WOODBURY, Circuit Judges, and SWEENEY, District Judge.
MAHONEY, Circuit Judge.
The question in this case is whether the proceeds of certain insurance policies should be included in the gross estate of the decedent for federal estate tax purposes. The decedent, Frederick Bodell, took out eight policies of insurance on his life on account of which $120,260.07 was paid at his death. He died on June 20, 1938, with his wife, Albina Elise Bodell, surviving him. His executor, Joseph J. Bodell, the petitioner herein, included no part of these proceeds in the decedent’s estate tax return. The Board of Tax Appeals (now The Tax Court of the United States) sustained the determination of the Commissioner of Internal Revenue that all of the proceeds in excess of the $40,000 exemption should be included in the decedent’s gross estate.
The petitioner has appealed from the decision of the Board on only two of the policies. Policy No. 178772, Provident Mutual Life Insurance Company of Philadelphia, was an endowment policy for $5000 taken out by the decedent on October 31, 1911, payable to him on October 31, 1955, if living; otherwise to his mother, if living; otherwise to his estate. The decedent’s wife was irrevocably named beneficiary in place of his mother on May 6, 1918. All the premiums on the policy were paid by the decedent. Policy No. 398704, Massachusetts Mutual Life Insurance Company, was an ordinary life policy for $10,000 taken out by decedent March 1, 1917, originally payable to the mother of the decedent. On October 6, 1917, the beneficiary was changed and the policy was made payable to the decedent’s wife, if living at his death; otherwise to his estate. The right to change the beneficiary at any time was reserved by the decedent. He paid all the premiums on this policy.
By stipulation since the taking of the appeal it has been agreed by the parties that the sole contention of the petitioner is that the proceeds of these two policies should not be included in the gross estate of the decedent on the ground that they were taken out prior to the effective date of the Revenue Act of 1918, 40 Stat. 1057, and that the decedent exercised no rights under the policies subsequent to that date. The petitioner has abandoned the contention that if any part of the proceeds are includible in the gross estate, only the value of the decedent’s interest therein is in-cludible. Therefore that question is not before this court.
The applicable statute is the Revenue Act of 1926, Ch. 27, 44 Stat. 9, as amended by § 404 of the Revenue Act of 1934, Ch. 277, 48 Stat. 680, 26 U.S.C.A. Int.Rev.Acts, pages 227, 231:
“Sec. 302. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside the United States— * * * * *
“(g) To the extent of the amount receivable by the executor as insurance under policies taken out by the decedent upon his own life; and to the extent of the excess over $40,000 of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life.
“(h) Except as otherwise specifically provided therein subdivisions (b), (c), (d), (e), (f), and (g) of this section shall apply to the transfers, trusts, estates, interests, rights, powers, and relinquishment of powers, as severally enumerated and described therein, whether made, created, arising, existing, exercised, or relinquished before or after the enactment of this Act.” Treasury Regulations 80, 1937 ed., provide :
“Article 25. Taxable insurance. * * * Insurance is considered to have been taken out by the decedent, whether or not he made the application, if he acquired the ownership of, or any legal incident thereof in, the policy; * * * Legal incidents of ownership in the policy include, for example: The right of the insured or his estate to its economic benefits, the power to change the beneficiary, to surrender or cancel the policy, to assign it, to revoke an assignment, to pledge it for a loan, or to obtain from the insurer a loan against the surrender value of the policy, etc.”
Article 27 recites that the proceeds in excess of $40,000 should be included in the gross estate “regardless of when the policy was or the policies were issued.”
In contending that the policies are not includible in the gross estate by reason of the fact that they were taken out prior to the effective date of the Revenue Act of 1918, the taxpayer relies on three cases: Lewellyn v. Frick, 1925, 268 U.S. 238, 45 S.Ct. 487, 69 L.Ed. 934; Bingham v. United States, 1935, 296 U.S. 211, 56 S.Ct. 180, 80 L.Ed. 160, and Industrial Trust Co. v. United States, 1935, 296 U.S. 220, 56 S.Ct. 182, 80 L.Ed. 191.
The proceeds of life insurance policies were first made a part of the gross estate by § 402(f) of the 1918 Act, 40 Stat. 1057, 1098, which became effective on February 24, 1919. Section 302(g) of the 1926 Act, as amended, is identical with § 402(f) of the 1918 Act. The facts in Lewellyn v. Frick, supra, show that the policies had been taken out before the 1918 Act. Some of the policies had been irrevocably assigned before the Act was passed. In others the right was reserved to revoke the assignment. At the date of the insured’s death, there was no clause in the statute making the insurance provision expressly applicable to the proceeds of policies taken out before its enactment and the court refused to apply the statute to a case which arose before its passage.
In Bingham v. United States, supra, the policies were taken out before 1918, made irrevocably payable to the named beneficiaries and the insured retained a possibility of reverter so that if the beneficiaries predeceased him the proceeds would be payable to his estate. Here also, the insured died before the enactment of the clause in the statute making the insurance provisions expressly applicable to pre-1918 policies. There were two grounds of decision. For its first ground, the court relied on the Frick case with its grave constitutional doubts if the Act were construed to apply to policies taken out before 1918. For its second ground, the court held that the retention of a possibility of reverter was not sufficient basis for taxing the policies, citing Helvering v. St. Louis Union Trust Co., 1935, 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and Becker v. St. Louis Union Trust Co., 1935, 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35, and said at page 219 of 296 U.S., at page 181 of 56 S.Ct., 80 L.Ed. 160:
“ * * * Those principles establish that the title and possession of the beneficiary were fixed by the terms of the policies and assignments thereof, beyond the power of the insured to affect, many years before the act here in question was passed. No interest passed to the beneficiary as the result of the death of the insured. His death merely put an end to the possibility that the predecease of his wife would give a different direction to the payment of the policies.”
In Industrial Trust Co. v. United States, supra, the facts were like those in the Bingham case but the insured died subsequent to the enactment of the Revenue Act of 1924, which introduced § 302(h), 26 U.S.C.A. Int.Rev.Acts, page 68. Although this section specifically referred to § 302(g), the court doubted whether it was applicable to insurance receivable by a beneficiary other than the executor and refused so to construe it for fear of the grave constitutional doubts in the Bingham case.
We think that the Supreme Court has indicated by Helvering v. Hallock, 1940, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, and United States v. Jacobs, 1939, 306 U.S. 363, 59 S.Ct. 551, 83 L.Ed. 763, that the Bingham case is no longer to be followed. In the case before us the insured, in addition to paying all the premiums on the policies, retained in each of them the right of his estate to receive the proceeds should he survive the named beneficiary. Helvering v. Hallock, supra, held that the retention of such a possibility of reverter in the case of a transfer in trust was sufficient to include the trust property in the decedent’s gross estate. It was there decided that the crucial taxable transfer is not the technical conveyance of title, but rather the transfer of economic interests which only occurs when the settlor dies; only then is the beneficiary sure.of his interest. The beneficiary gets nothing unless and until the settlor predeceases him. It is then that the settlor’s string on the policy is cut. That case arose under § 302(c), Revenue Act 1926, as amended by Revenue Act 1932, § 803, 26 U.S.C.A. Int.Rev.Code § 811(c), but its reasoning is equally applicable to § 302(g). Commissioner v. Washer, 6 Cir., 1942, 127 F.2d 446, certiorari denied 317 U.S. 653, 63 S.Ct. 48, 87 L.Ed.-; Chase National Bank v. United States, 2 Cir., 1940, 116 F.2d 625; Bailey v. United States, 1940, 31 F.Supp. 778, 90 Ct.Cl. 644. It also expressly overruled the St. Louis Union Trust cases relied upon in the second part of the Bingham case. Thus the Hal-lock case removes the second ground of the Bingham decision that the retention of a possibility of reverter under an insurance policy is not a sufficient incident of ownership to impose a tax. Chase National Bank v. United States, supra; Bailey v. United States, supra; Estate of Cain v. Com’r of Int. Rev., 1941, 43 B.T.A. 1133. See Paul, Federal Estate and Gift Taxation, 1942, p. 540, § 10.20.
In United States v. Jacobs, supra, real estate was conveyed to the decedent and his wife as joint tenants in 1909. The wife never contributed any part of, or consideration for, the joint property. Section 302(h) was in effect at the decedent’s death. The court held that the entire value of the joint estate was properly and constitutionally includible in the decedent’s gross estate. In response to the taxpayer’s argument that a one-half interest in the joint property was transferred to and vested in the wife in 1909 and could not thereafter be taxed as a part of decedent’s gross estate without retroactively and unconstitutionally applying the tax to the 1909 transfer, the court said, pages 366, 367, 368, of 306 U.S., page 553 of 59 S.Ct, 83 L.Ed. 763:
“But the tax was not levied on the 1909 transfer and was not retroactive. At decedent’s death in 1924, ownership and beneficial rights in the property which had existed in both tenants jointly changed into the single ownership of the survivor. This change in ownership, attributable to the special character of joint tenancies, was made the occasion for an excise, to be measured by the value of the property in which the change of ownership occurred. Had the tenancy not been created, this survivorship and change of ownership would not have taken place, but the tax does not operate retroactively merely because some of the facts or conditions upon which its application depends came into being prior to the enactment of the tax.” The decedent’s death “became the ‘generating source’ of important and definite accessions to the property rights of the other.”
The decedent’s death ripened into full bloom the survivor’s rights in the property. The dissenting opinion followed the earlier reasoning of the Bingham case. The constitutional issue in the case before us is the same as that in the Jacobs case. We believe that United States v. Jacobs with its reasoning which is the same as that of the Hallock case indicates that the first ground of the Bingham case is no longer law. As Paul in his book on Federal Estate and Gift Taxation says, p. 497, § 10.06:
“Any such constitutional qualms have been completely dispelled by the holding in United States v. Jacobs that section 811 (h) [302(h) here] may be applied in taxing the full value of a joint tenancy, the creation of which antedated the federal estate tax. The rationale of this case is equally applicable to pre-1918 insurance policies, assuming that an incident of ownership, a possibility of reverter, or the payment of premiums brings the policy within the ordinary ambit of subdivision (g).”
Cf. Commissioner v. Washer, supra; Estate of Cain v. Com’r of Int.Rev., supra. The Board of Tax Appeals in its opinion in the instant case says that insofar as Estate of Thompson v. Com’r of Int.Rev., 1940, 41 B.T.A. 901, is contrary, it will no longer be followed.
The taxpayer attempts to distinguish the Jacobs case on the ground that a different class of property was there involved. He says that after the passage of the Act the joint tenants might have terminated their joint tenancy and restored the status quo, whereas that would have been impossible without substantial loss in the case of insurance. In Porter v. Commissioner, 1933, 288 U.S. 436, 53 S.Ct. 451, 454, 77 L.Ed. 880, however, there was no possibility whatever of returning to the status quo or of so escaping the tax even at substantial loss. The taxpayer there had transferred his property in an irrevocable trust before the enactment of the applicable subsection of the Act. He reserved the power to alter or modify the terms of the trust but could make no change in favor of himself. The court found it sufficient that his death terminated his control and was “in respect of title to the property in question, the source of valuable assurances passing from the dead to the living.”
With the constitutional doubts of the Bingham case thus dispelled, it seems that the construction of § 302(h) by the Supreme Court in the Industrial Trust Company case should no longer be controlling. See Paul, supra, p. 495, footnote 17, and p. 497. The plain language of § 302(h) makes § 302(g) applicable to pre-1918 policies. It is to be noted that in sustaining the imposition of the tax we place no reliance on the endowment feature of one of the policies.
From the reasoning in the Jacobs and Hallock cases it is also clear that the retention by the insured of the power to change the beneficiary in and of itself would make the proceeds on policy No. 398704 taxable. Commissioner v. Washer, supra; Broderick v. Keefe, 1 Cir., 1940, 112 F.2d 293; cf. Keefe v. United States, 1942, 46 F.Supp. 1016, 97 Ct.Cl. 576, certiorari denied 318 U.S. 768, 63 S.Ct. 759, 87 L.Ed. —, with which compare Braun v. United States, 1942, 46 F.Supp. 993, 98 Ct.Cl. 176, where the insured died in 1919, before the enactment of § 302(h). See Reinecke v. Northern Trust Co., 1929, 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397. As the Supreme Court said in Chase National Bank v. United States, 1929, 278 U.S. 327, 338, 339, 49 S.Ct. 126, 129, 73 L.Ed. 405, 63 A.L.R. 388, concerning policies taken out after 1918:
“Termination of the power of control at the time of death inures to the benefit of him who owns the property subject to the power and thus brings about, at death, the completion of that shifting of the economic benefits of property which is the real subject of the tax. * * * It is the termination of the power of disposition of the policies by decedent at death which operates as an effective transfer and is subjected to the tax * *
Since the taxable transfer is the maturing of the beneficiary’s economic interests in the policy by the death of the insured, the exercise or failure to exercise the right to change the beneficiary after 1918 is immaterial.
The decision of the Board of Tax Appeals is affirmed.
Treasury Regulations 80, 1937 ed., as amended by T.D. 5032, 1941-1 Cum.Bull. 427, added the following sentence: “The insured possesses a legal incident of ownership if his death is necessary to terminate his interest in the insurance, as, for example, if the proceeds would become payable to his estate, or payable as he might direct, should the beneficiary pre-decease him.” Article 25 of the 1934 edition of Regulations 80 had previously included a similar provision, hut it was eliminated in 1937 by T.D. 4729, 1937-1 Cum.Bull. 284. We think it proper to include the possibility of reverter as an incident of ownership under the 1937 edition of the Regulations.
In Lang v. Commissioner, 1938, 304 U.S. 264, 58 S.Ct. 880, 82 L.Ed. 1331, 118 A.L.R. 319, some of the policies had been taken out before 1918, as was pointed out in defendant’s brief in that case. The court included proceeds of these policies making no reference to the date of their issue.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_numresp
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Homer R. SYKES, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR and Itmann Coal Company, a corporation, Respondents.
No. 85-1441.
United States Court of Appeals, Fourth Circuit.
Argued November 11, 1986.
Decided March 3, 1987.
W. Richard Staton, D. Grove Moler, Moler & Staton, Mullens, W. Va., on brief, for petitioner.
Douglas A. Smoot (Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief), for respondents.
Before WIDENER, PHILLIPS and ERVIN, Circuit Judges.
ERVIN, Circuit Judge:
I.
Petitioner Homer Sykes worked in coal mines for over forty years. Prior to 1950, he was a motorman inside the mines. Nearly all of his more recent work occurred above ground as a heavy-equipment operator and mechanic. He retired from his last coal mining job in 1976 because of shortness of breath. Sykes had never lost time working in the mines from respiratory problems or any of his other injuries; he was a dedicated worker who was asked to remain in his position even after retirement age. He testified that his breathing difficulty kept him from staying on the job.
In 1972, Sykes was examined and tested for state occupational pneumoconiosis benefits. Three doctors interpreted his x-ray as showing some degree of pneumoconiosis. Pulmonary function studies from that date were just outside the range required for invocation of the federal interim presumption of disability. Sykes received a state award based on a 25% loss of pulmonary capacity.
Sykes filed a petition for federal black lung benefits in 1974. He was examined that year by Dr. A.R. Piracha, who found chronic obstructive pulmonary disease with a minimal to moderate level of impairment. An x-ray taken in 1974 was read by a field reader as showing simple pneumoconiosis, q-type, of a 3/3 profusion. The Department of Labor requested another interpretation. A B-reader, Dr. William S. Cole, read simple pneumoconiosis, r-type, of 2/2 profusion. Dr. Cole also found the film to indicate complicated pneumoconiosis, category A. Three years later, the company obtained another reading of the same x-ray from Dr. Paul C. Francke, also a B-reader. Dr. Francke interpreted the film as simple pneumoconiosis, q-type, of a 2/1 profusion. He made no finding of complicated pneumoconiosis.
After Dr. Cole’s reading of complicated pneumoconiosis, the Department of Labor determined that Sykes was entitled to benefits under the irrebuttable presumption of § 411(c)(3), 30 U.S.C. § 921(c)(3) (1982). The company controverted the claim, and a hearing was set before an administrative law judge (AU). The company arranged for Sykes to be examined by a physician of its choosing, as provided at 20 C.F.R. § 725.414(a) (1986). Sykes made two trips to this physician, Dr. Willard Pushkin, yielding the ventilatory test results noted supra note 1. But Sykes refused to submit to another x-ray, on the basis of a note from his treating physician, which said that further x-rays could endanger Sykes’ health. Dr. Pushkin noted in his report that Sykes “has shortness of breath with minimal effort,” “has difficulty negotiating a flight of stairs,” has “chronic cough and expectorates mucoid sputum,” and “wheezes and vomits a good deal.” Dr. Pushkin opined that:
1. There is sufficient objective evidence to justify a diagnosis of coal workers’ pneumoconiosis with respect to Mr. Sykes____
3. Mr. Sykes does not suffer from pulmonary or respiratory impairment, based on blood gas studies, as well as spirometry.
II.
The AU awarded benefits based on the § 727.203 presumption at the one and only hearing that was ever held. The AU had the x-ray evidence of complicated pneumoconiosis before him, and the central issue in the hearing was whether or not Sykes would get benefits based on the irrebuttable presumption of 30 U.S.C. § 921(c)(3) (1982). The AU decided at the hearing not to consider the evidence of complicated pneumoconiosis because of possible prejudice to the employer in examining Sykes without the benefit of an additional x-ray. But in his written opinion, the AU reversed this decision sua sponte and claimed to have considered and rejected evidence of complicated pneumoconiosis.
The change of position between the hearing and the time of the written opinion, and the hearing transcript itself, indicate that the AU felt that Sykes definitely should receive benefits. The AU pegged his holding on the interim presumption rather than the irrebuttable presumption so as to avoid any appearance of prejudice to the employer from its inability to get a new x-ray film. At the hearing, there was little discussion of the other evidence in the case, including the Pushkin report. The AU concluded that the interim presumption was invoked by the x-ray evidence and was not rebutted under 20 C.F.R. § 727.203(b)(2) (miner able to do his usual coal mine work) or § 727.-203(b)(3) (total disability not caused by coal mine employment).
The AU considered the Pushkin report in his written opinion, but gave it less than compelling weight. The AU held that the Pushkin opinion “does not tend to affirmatively ‘establish’ the ability or lack of causation required by 727.203(b)” based on the actual wording of the opinion and the fact that its primary conclusion was premised solely on nonqualifying ventilatory and blood gas studies.
The Benefits Review Board (BRB or the Board) affirmed the AU’s written treatment of the irrebuttable presumption evidence, but reversed the AU’s finding of entitlement to benefits. The BRB first asserted that the AU completely ignored Dr. Pushkin’s report; the Board then explained that a medical opinion on the severity of pulmonary impairment based on nonqualifying ventilatory or blood gas studies was competent rebuttal evidence. See Sykes v. Itman Coal Co., 2 Black Lung Rep. 1-1089 (1980). The BRB remanded for renewed consideration of the medical evidence in the case on the question of a § 727.203(b)(2) rebuttal. One Board member dissented, urging that the AU’s initial decision did consider the Pushkin report in a way that accorded precisely with this court’s approach to rebuttal of the interim presumption.
On remand, the ALT reversed and denied benefits due to Dr. Pushkin’s finding of no pulmonary impairment, while noting that three other doctors came to a different conclusion. None of those other doctors found that Sykes was totally disabled; however, the overall summary of the medical evidence was accurately given by the dissenting BRB member:
All nine physicians expressing an opinion on the existence of pneumoconiosis agreed that claimant suffered from pneumoconiosis; ... of six physicians expressing an opinion on the existence of respiratory impairment, five physicians found that claimant suffers from a respiratory impairment; all five physicians expressing an opinion on claimant’s work ability found that claimant had suffered a decrease in capacity to work; and only one physician was selected by the claimant, with all others being referrals by the Department of Labor, West Virginia Occupational Pneumoconiosis Board, or the employer.
Id. (dissenting opinion). Nevertheless, the BRB affirmed the denial of benefits in the second instance.
III.
We agree with the dissenting BRB member: the initial AU decision, awarding benefits, was based on substantial evidence and should not have been vacated. The denial of benefits in this case would work a glaring injustice. The Board chided the AU for ignoring Dr. Pushkin’s report, when in fact the AU considered that report, but properly chose not to give it controlling weight. The AU’s choice of words in describing the Pushkin report was not ideal, but the context of his decision makes clear that he merely refused to credit it above the other reports that indicated the existence of some disability. Dr. Pushkin found that “Mr. Sykes does not suffer from pulmonary or respiratory impair-merit, based on blood gas studies, as well as spirometry” (emphasis added). Considered alongside the other evidence in this case, including the opinion of a B-reader that Mr. Sykes had complicated pneumoconiosis, this statement alone does not compel the conclusion that “the individual is able to do his usual coal mine work or comparable and gainful work.” 20 C.F.R. § 727.-203(b)(2) (1986). While Dr. Pushkin’s statement is probative evidence for a rebuttal under § 727.203(b), it was a mistake for the Board to vacate the AU’s decision and implicitly suggest that, on the basis of Dr. Pushkin’s opinion alone, the interim presumption should be rebutted.
Dr. Pushkin’s report fails to mention the exertive requirements of Sykes’ job or the extent to which Sykes’ symptoms would hinder his performing comparable work. A mere finding of “no impairment” under the American Medical Association standards cannot be equated with a finding that a claimant can continue to perform coal mining work. See Sykes v. Itman Coal Co., 2 Black Lung Rep. 1-1089 (1980) (dissenting opinion). At the .least, for an employer to rebut the interim presumption under § 727.203(b)(2), consideration should be given to the health requirements for work comparable to that performed by the claimant. The plain words of the regulation mandate such consideration. By remanding to the AU in this case and suggesting that Dr. Pushkin’s opinion deserved more weight than it was initially given, the Board effectively dictated a result contrary to the one that the AU clearly believed was just.
The BRB has taken another position in this case which is contrary to the plain language of the statute. It held that an employer may rebut the interim presumption under § 727.203(b)(2) by showing that a miner, while concededly totally disabled, is not disabled for pulmonary or respiratory reasons. That is, the BRB asserted that a causation requirement may be imported into § 727.203(b)(2). This is belied by the words of the regulation. Section 727.-203(b)(2) is concerned with the question of whether miners are totally disabled for whatever reason. There is no inquiry into causation in a proper § 727.203(b)(2) rebuttal. The reference in that subsection to § 410 merely clarifies the nature of “usual and comparable work”; it does not bring causation into question. Causation is addressed in § 727.203(b)(3). Once the miner’s disability is conceded, then the question arises whether that disability is unrelated to mine work.
In the case of Mr. Sykes, a fair reading of the record shows that the ALJ and all who considered his affliction prior to the BRB reversal believed that this miner should receive benefits. The AU struggled with the proper way to award benefits; he might well have proceeded under the irrebuttable presumption initially relied on by the Department of Labor, had not Sykes’ inability to produce another x-ray appeared to block his path. He instead wrote an opinion that relied on the rebut-table presumption and that dealt rather cursorily with all the medical evidence, including that of Dr. Pushkin. There was substantial evidence for his awarding of benefits, and the BRB should not have disturbed this initial decision. Since the Board did vacate the initial decision, with directions that more weight be placed on Dr. Pushkin’s report, the ALJ was left with little choice on remand other than to switch positions and deny benefits.
The dissent was correct and the Board in error in Sykes v. Itman Coal Co., 2 Black Lung Rep. 1-1089 (1980). Accordingly, we reverse and remand to the Board with instructions that the ALJ’s initial decision be reinstated.
REVERSED.
. See 20 C.F.R. § 727.203(a)(2) (1986). Sykes’ 1972 ventilatory study produced an FEV-1 of 2.6 and an MW of 89. According to his medical report, he was 69 inches tall in 1972. The § 727.203(a)(2) qualifying figures for a miner 69 inches tall are an FEV-1 of 2.4 and an MW of 96. By the time of his last available test, by Dr. Pushkin in 1979, Sykes scored an FEV-1 of 2.538 and an MW of 62. His height was then listed as 67 inches. Dr. Pushkin attributed the very low MW score to submaximal effort on the part of Sykes.
Counsel for Sykes indicated at oral argument that Sykes had consistently produced qualifying ventilatory test results prior to Dr. Pushkin’s evaluation. However, in the record before us, none of the values are qualifying. All are just above the § 727.203(a)(2) levels. The existence of values that do not qualify to invoke the interim presumption, of course, is not determinative of the question whether a claimant is entitled to benefits. The presumption can be invoked in any of four ways, see 20 C.F.R. § 727.203(a)(1)-(4) (1986), and once invoked, rebuttal must be accomplished under one of the methods at § 727.203(b).
. The two subsections read as follows:
(b) Rebuttal of interim presumption ... The presumption in paragraph (a) of this section shall be rebutted if:
(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work (see § 410.412(a)(1) of this title); or
(3) The evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment.
20 C.F.R. § 727.203(b) (1986).
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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songer_respond1_3_3
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K
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "agency whose first word is "federal"". Your task is to determine which specific federal government agency best describes this litigant.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees, AFL-CIO, Local 1923, Intervenor.
No. 86-2619.
United States Court of Appeals, Fourth Circuit.
Argued March 4, 1987.
Decided June 23, 1987.
Rehearing In Banc Granted Sept. 23, 1987.
Harold K. Krent, Civ. Div., Dept, of Justice (Richard K. Willard, Asst. Atty. Gen., William Kanter, Civil Div., Dept, of Justice, Washington, D.C., on brief), for petitioner.
Ruth E. Peters, Sol. (William E. Persina, Deputy Sol., Arthur A. Horowitz, Associate Sol., Robert J. Englehart, Federal Labor Relations Authority, Washington, D.C., on brief), for respondent.
Stuart A. Kirsch, American Federation of Government Employees, AFL-CIO (Mark Roth, Gen. Counsel, Washington, D.C., on brief), for intervenor.
Before WINTER, Chief Judge, and MURNAGHAN and WILKINSON, Circuit Judges.
MURNAGHAN, Circuit Judge:
The United States Department of Health and Human Services (HHS) has petitioned for review of a Federal Labor Relations Authority (“FLRA”) decision ordering HHS to bargain over a proposal by the American Federation of Government Employees (the “Union”). The proposal would require HHS to comply with OMB Circular A-76 (the “Circular”) when making “contracting-out” decisions. HHS contends that it has no duty to bargain because the proposal concerns a subject exclusively reserved to management. The FLRA has cross-petitioned for enforcement, and the union intervened on the FLRA’s behalf. We enforce the FLRA’s order because the Union’s proposal does not usurp the authority reserved to management under 5 U.S.C. § 7106.
I. Facts and Proceedings Below
During contract negotiations between HHS and the Union, which represents clerical employees in the office of HHS General Counsel in Baltimore, the Union proposed the following provision:
The decision by the employer to contract out work presently being performed by bargaining unit employees will be made in accordance with OMB Circular A-76 (unless application of the Circular is prohibited or not required by the Circular).
After negotiations, an HHS agency head reviewing the proposal refused to approve it on the grounds that, if the proposed provision became part of the collective bargaining agreement, it would violate: (1) the management rights clause of the Act, which bars negotiation over proposals limiting management’s power to make determinations with respect to contracting-out work, 5 U.S.C. § 7106(a)(2)(B); and (2) 5 U.S.C. § 7117(a)(1), which precludes bargaining over proposals that would create an inconsistency with any federal law or government-wide regulation. The Union petitioned the FLRA to review HHS’s determination that the proposed provision was nonnegotiable. The FLRA determined that the proposed provision was negotiable, beeause it was not inconsistent with management’s right under section 7106 of the Act to make determinations with respect to contracting-out or with applicable law or regulations. See American Federation of Government Employees, AFL-CIO, Local 1923 and Department of Health and Human Services, 22 FLRA No. 106, at 6 (1986).
HHS filed a motion for reconsideration, dated October 1, 1986, of the FLRA’s July 31, 1986 decision. In the motion HHS argued for the first time that the Circular is not an “applicable law” for purposes of section 7106(a)(2) of the Act and that it is not a “law, rule or regulation affecting conditions of employment,” the violations of which can be resolved in accordance with sections 7103(a)(9) and 7121(a), through the negotiated grievance procedure. The FLRA denied the HHS motion for reconsideration as untimely, noting that under FLRA rules (5 C.F.R. § 2429.17) a motion for reconsideration is due within ten days of the FLRA decision in a particular case. This appeal followed. We have jurisdiction pursuant to 5 U.S.C. § 7123 over the issues raised in the Union’s original petition to the FLRA and discussed in the FLRA’s July 31, 1986 decision. As discussed in part D of this opinion, however, we have no jurisdiction over the issues HHS raised for the first time in its October 1, 1986 motion for reconsideration.
II. Standard of Review
The Act provides that the FLRA’s decisions are reviewable in accordance with section 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706 (1982). See 5 U.S.C. § 7123(c) (1982). The scope of our review “is limited to whether the agency’s [action] is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” United States Army Engineer Center v. FLRA, 762 F.2d 409, 414 (4th Cir.1985). Furthermore,
[T]he authority is entitled to considerable deference when it exercises its special function of applying the general provisions of the Act____
On the other hand, the deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress... Accordingly, while reviewing courts should uphold reasonable and defensible constructions of an agency’s enabling Act... they must not rubber stamp... administrative decisions that frustrate the congressional policy underlying a statute.
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983).
Thus, the FLRA’s decision should be upheld if it is reasonably defensible, Id., and not inconsistent with any congressional mandate or policy. EEOC v. FLRA, 744 F.2d 842, 847 (D.C.Cir.1984), cert. dismissed, — U.S. -, 106 S.Ct. 1678, 90 L.Ed.2d 19 (1986). On the other hand, enforcement of the decision should be denied if the decision is contrary to congressional intent.
III. Discussion
Title VII of the Civil Service Reform Act of 1978 (the Act), 5 U.S.C. §§ 7101-7135 (1982) established a collective bargaining system to govern labor-management relations in the federal sector. Under the act, federal agencies and employee unions are required to bargain in good faith over “Conditions of employment.” 5 U.S.C. § 7103(a)(12). The term “Conditions of employment” is defined in the Act as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions.” 5 U.S.C. § 7103(a)(14).
The duty to bargain is limited by a management rights clause contained in the Act. 5 U.S.C. § 7106(a). In particular, the management rights clause provides that management has the authority “in accordance with applicable laws... to make determinations with respect to contracting out.” 5 U.S.C. § 7106(a)(2)(B). The procedures used in exercising these rights, however, are subject to negotiation.
HHS argues that the management’s rights clause gives management complete discretion in making contracting-out decisions. HHS points to the introductory language of the clause which states that “subject to subsection (b) of this section nothing” in Title VII “shall effect the authority of any management official of any agency” to make decisions reserved to management. 5 U.S.C. § 7106(a). The FLRA itself has recognized that the Act reserves to management as nonnegotiable the substantive exercise of its authority to make contracting-out determinations. NFFE, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 F.L.R.A. 574 (1981), aff'd sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d 886 (D.C.Cir.1982).
We believe the proposed provision would not establish any additional substantive limits on management’s right to make contracting-out decisions. The FLRA found that HHS is required to adhere to the provisions of the Circular regardless of whether the Union’s proposal is adopted as part of the collective bargaining agreement. The Union’s proposal simply restates HHS’s obligation to adhere to existing legal and regulatory requirements. Before this court, in fact, counsel for HHS indicated that the Department intends to comply with the Circular in making any contracting-out decisions. As a result, we agree with the FLRA’s conclusion that the Union’s proposal would not impair HHS’s statutory right to make contracting-out decisions “in accordance with applicable laws.”
Incorporating the Circular into the collective bargaining agreement would subject disputes over violations of the Circular to the arbitration procedures contained in the Act. 5 U.S.C. § 7103(a)(9)(C)(i). Subjecting such disputes to arbitration does not render the Union’s proposal nonnegotiable for two reasons. First, the management rights clause exempts from its coverage any bargaining proposal concerning procedures governing agency contracting-out decisions. Second, contracting-out decisions are currently subject to grievance arbitration under section 7121 of the Act. We will discuss those issues seriatim.
A.
HHS asserts that adoption of the Union’s proposal would permit arbitral review of HHS’s contracting-out decisions, and that such review would adversely affect the exercise of management’s contracting-out authority. This argument overlooks section 7106(b) of the Act. Arbitration is a procedure, and management’s authority to contract-out under section 7106(a) of the statute is “[sjubject to” section 7106(b)(2), which provides for the negotiation of procedures which management will observe in exercising its right to contract-out. 5 U.S.C. § 7106(b)(2) HHS, while admitting that subjecting management’s contracting-out decisions to arbitral review is procedural in nature, contends that such review will have a substantive effect, because management will be forced to consider the potential impact of arbitration before making its contracting-out decisions.
The Ninth Circuit adopted HHS’s position in Defense Language Institute v. FLRA, 767 F.2d 1398 (9th Cir.1985), cert. dismissed, — U.S. -, 106 S.Ct. 2004, 90 L.Ed.2d 647 (1986), and the D.C. Circuit adopted the FLRA’s view that the proposed provision is a negotiable procedure. EEOC v. FLRA, 744 F.2d 842. In Defense Language Institute, the court maintained that subjecting contracting-out disputes to arbitration would “divest management of the essence of its statutory authority to contract-out” because arbitration would allow the neutral arbitrator to second guess the business judgment of management officials. 767 F.2d at 1401-02.
The Ninth Circuit’s position, whatever its surface appeal, is ultimately unpersuasive. An arbitrator’s ability to substitute his judgment for that of management is determined by the substantive standards for review and not by the mere fact that management’s decision is subject to review. The arbitrator is not entitled to substitute his judgment for that of management when management’s decision is a matter of discretion. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C.Cir.1982), cert. denied, 461 U.S. 926, 103 S.Ct. 2085, 77 L.Ed.2d 297 (1983); NTEU v. FLRA, 767 F.2d 1315, 1317-18 (9th Cir.1985). In addition, if the Executive Department does not like the substantive limits imposed by arbitrators interpreting the Circular, it may change those limits by amending its own Circular. Also, in the event an arbitrator exceeds his authority, management may take exception to the arbitrator’s decision to the FLRA for review. 5 U.S.C. § 7122. See, e.g., Blytheville Air Force Base, 22 FLRA No. 72 (1986). Finally, judicial review is available in the event an arbitrator imposes a limitation on management authority which is not “in accordance with applicable laws.” 5 U.S.C. § 7123.
Our holding that a Union’s proposal which would authorize arbitration of disputes over the Circular is negotiable under section 7106(b)(2) of the Act is consistent with Congress’ intention in adopting Title VII of the Civil Service Reform Act. The Act was adopted with the twin goals of expanding the right of collective bargaining and preserving the ability of the federal government to operate in an efficient manner. Defense Language Institute v. FLRA, 767 F.2d at 1401. The Ninth Circuit found that subjecting management rights to the decision of a neutral arbitrator would unduly interfere with the efficient operation of government.
The Ninth Circuit’s interpretation of Title VII of the Act ignores the delicate compromise which allowed the Act to be passed by Congress. The final version of the management rights provision of Title VII was added to the Act on the floor of the House through a compromise measure offered by Representative Udall, the floor manager of the bill, as a result of the demands of promanagement forces. Labor sympathizers acceded to the demand for inclusion of the measure in return for the understanding that the rights “were a narrow exception to the general obligation to bargain in good faith.” 124 Cong.Rec. H 9638 (1978), reprinted in Legislative History at 1059 (Statement of Rep. Udall). Congress intended Title VII to remedy the past problem of the Federal Labor Relations Council’s (Council) overbroad interpretation of management rights. Congress expressed this intention in the Act by enumerating the management rights protected by the Act as exceptions to the general duty to bargain and by providing that Title VII and decisions of the new FLRA would supersede the Council’s decisions which were anathema to organized labor. 5 U.S.C. §§ 7106 and 7135. Representative Udall who forged the compromise measure, and the prolabor forces which supported the bill, emphasized that without acceptance of a canon of construction narrowly interpreting the scope of management rights, the bill would not be acceptable to a majority of Congress.
The whole structure and approach of title VII is in large part a repudiation of past Council practice. If we could not have been assured that identical language for management rights would be handled differently under the narrow construction mandated by title VII, the Udall compromise would never have been possible.
Legislative History, at 1060 (Statement of Rep. Udall).
The canon of construction which must guide resolution of the instant case, therefore, is that the management rights clause must be “treated narrowly as an exception to the general obligation to bargain over conditions of employment.” 124 Cong. Rec. H9634 (1978) (Statement of Rep. Udall) reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, 96th Cong., 1st Sess., 924 (Subcomm. Print November, 1979) (hereinafter cited as Subcomm. Legislative History). Therefore,
only bargaining proposals which [are] directly related to the actual exercise of the enumerated management rights are to be ruled nonnegotiable. An indirect or secondary impact on a management right is insufficient to make a proposal nonnegotiable... That the conference committee adopted this approach is reflected in the statement of managers that, in negotiations, “the parties may indirectly do what the (management rights) section prohibits them from doing directly.”
Legislative History, at 2008 (Statement of Rep. Ford). Management was unable to change this aspect of federal labor relations through the legislative process. This court will not grant to management the protection that management was unable to secure from Congress.
Under the applicable canon of construction, arbitration of a management right according to the substantive standards established by management is clearly a procedural proposal under Title VII. Any effect arbitration may have on management rights is only indirect. Thus, the FLRA is correct in its “conclusion that the proposal does not affect management’s reserved authority, within the meaning of the statutory language, to make contracting-out decisions.” EEOC v. FLRA, 744 F.2d at 848.
B.
We agree with the FLRA’s finding that arbitration of disputes involving application of the Circular would be in accordance with applicable laws because section 7121 of the Act already subjects disputes over contracting-out work to the Act’s grievance procedures. That provision states: “Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances...” 5 U.S.C. § 7121(a)(1). A grievance is elsewhere defined as “any complaint” by any employee or labor organization “concerning any matter relating to the employment of the employee” or by any employee, labor organization, or agency concerning “any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation, affecting conditions of employment” 5 U.S.C. § 7103(a)(9). Moreover, contracting-out is not enumerated in the five specific exemptions that Congress granted from the permissible scope of the grievance procedure. Id., at § 7121(c). In light of the expansive coverage of this section, the FLRA found that the proposed collective bargaining provision did not infringe on contracting-out decisions because such decisions were already subject to arbitration.
There is a problem with the FLRA’s view. The management rights provision and the grievance provision of the Act contradict each other. Section 7106 states that “nothing in this chapter shall affect the authority of any management official... in accordance with applicable laws... to make determinations with respect to contracting out.” 5 U.S.C. § 7106(a). If applicable law includes section 7121, then section 7106 in effect reads: “nothing in this chapter [71] except all the other provisions of Chapter 71, including § 7121... shall affect the authority of any management official of any agency... to make determinations with respect to contracting out.” See EEOC v. FLRA, supra, 744 F.2d at 857 (MacKinnon, J., dissenting). Thus, under the FLRA’s view of the statute, the clause of section 7106 stating “nothing in this chapter” becomes essentially meaningless because it is modified by the phrase in accordance with applicable laws which includes the provisions of “this chapter.”
A similar problem is encountered, however, if the nonnegotiability provisions of section 7106 are found to restrict the grievance provisions contained in section 7121. Section 7121 states: “Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances.” If section 7106 restricts the scope of section 7121 by excluding grievances relating to management’s exercise of its reserved rights from the section’s coverage, then section 7121 in effect reads: “Except as provided in paragraph (2) of this subsection and in section 7106 of this chapter____” Thus, under the Ninth Circuit and HHS view of the statute, the clause of section 7121 stating “except as provided in paragraph (2)” cannot be given its plain meaning because section 7121 is limited not only by paragraph (2) but by section 7106 as well.
When Congress’ plain language does not convey its intention, the court “must not be guided by a single sentence or member of a sentence, but [must] look to the provisions of the whole law and to its object and policy.” Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956). The Civil Service Reform Act of 1978 was enacted by Congress at a time when federal labor policy had established a preference for arbitration of labor disputes. Federal labor law had declared that arbitration of provisions restricting or regulating the exercise of management functions was not to be considered a forbidden infringement on management rights unless the parties presented “the most forceful evidence” that they intended to exclude a specific management function from arbitration. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584-85, 80 S.Ct. 1347, 1353-54, 4 L.Ed.2d 1409 (1960). If Congress expected to reverse this fundamental tenet of federal labor policy, it was obligated to set forth its intention explicitly within the new Act. Congress’ failure to do so impliedly accepts the preference for arbitration.
Indeed, Title VII of the Act was adopted against a background not of unbounded management rights, but of collective bargaining rights which were previously established by Executive Order 11491. Sub-comm. Legislative History, at 1244-57. Under the Executive Order 11491 employee grievances involving disputes over employment conditions were subject to arbitration even if they involved nonnegotiable areas of management rights. Report of the Federal Labor Relations Council, Subcomm. Legislative History, at 1260-61. Title VII incorporated most of the provisions of Executive Order 11491 into law, but with several substantive changes. These changes resulted through delicate negotiations between the competing labor and management interests which are affected by the Act. The changes did not include a provision altering the practice of subjecting nonnegotiable management rights to arbitration procedures. If those interests were unable to incorporate explicitly a change in the Executive Order which formed the foundation of the Act, then such a change should not be implied into the deal that was struck within the legislative process.
The legislative history of Title VII of the Act also explicitly indicates that arbitration of nonnegotiable management rights was possible under § 7121. The broad definition of grievance in § 7103(a)(9) was put into the Act by the Conference members so that
So long as a rule or regulation “affects conditions of employment”, infractions of that rule or regulation are fully grievable, even if the rule or regulation implicates some management right. This interpretation of the definition is required both by the express language of the section and by the greater priority given the negotiability of procedures over the right of management to bar negotiations because of a retained management right.
124 Cong.Rec. H 13609, reprinted in Legislative History at 2012 (Statements of Rep. Ford) (emphasis supplied). In addition, during the house debates on the Udall compromise amendment to the Act, it was explained that the management rights provisions of the Act would “in no way affect the employee’s right to appeal the decision[s of management] through statutory procedures or, if applicable, through procedures set forth in a collective bargaining agreement,” because such decisions were to be made in accordance with applicable laws. Id. at 1050 (Statement of Rep. Udall). Representative Udall further stated that the management rights section was:
still to be treated narrowly as an exception to the general obligation to bargain over conditions of employment... [This amendment] preserves management’s right to make the final decisions in these additional areas in accordance with applicable laws, including other provisions of chapter 71 of title 5. For example, management has the reserved right to make the final decision to ‘remove’ an employee; but that decision... would in no way affect the employee’s right to appeal the decision through... the procedures set forth in a collective bargaining agreement.
124 Cong.Rec. H 9634 (1978) reprinted in Subcomm. Legislative History at 924.
There is nothing in the legislative history indicating that Congress intended that the reserved management rights listed in section 7106(a) be beyond the Act’s grievance procedure. In fact, as shown above, the Act’s legislative history clearly demonstrates Congress’s intention that any contradiction between sections 7121 and 7106 be resolved in favor of the employee’s right to grieve issues affecting management rights. Thus, we hold that a designated management right which is nonnegotiable is grievable under the Act’s negotiated grievance procedure.
C.
The duty to bargain exists only “to the extent not inconsistent with any Federal law or any Government-wide rule or regulation.” 5 U.S.C. § 7117(a)(1). The Circular provides that its provisions “shall not be construed to create” any right of appeal except as provided in the Circular itself. HHS argues that the FLRA’s ruling, that the Union’s proposal is negotiable, is in conflict with the Circular because the ruling subjects agency contracting-out decisions to the Act’s grievance procedures. We disagree.
HHS’s argument can be rejected for two reasons. First, the Union’s proposal does not create any new right of appeal, because, as discussed above, the right to file grievances regarding contracting-out decisions is created by the Act. 5 U.S.C. §§ 7103(a)(9) and 7121(a). Second, even assuming there is an inconsistency between the Act’s grievance procedures and the Circular’s appeal procedures, there is no indication that Congress intended agencies to limit by regulation the statutorily defined grievance procedure of section 7121. EEOC v. FLRA, 744 F.2d at 851.
The Act’s legislative history makes clear that Congress intended that section 7117(a)(1) only bar negotiation over proposals that would bring about inconsistencies with law, rule, and regulation. H.R.Conf. Rep. 95-1717, 95th Cong., 2d Sess. 158 (1978), U.S.Code Cong. & Admin.News 1978, p. 2723, reprinted in Subcomm. Legislative History at 826. Thus, if a proposal’s only inconsistency with a rule or regulation concerns grievance procedures, then section 7117(a)(1) would not bar negotiation of the proposal. The primary concern of the “not inconsistent with any... law... rule or regulation” clause of section 7117(a)(1) is with inconsistencies which would interfere with management’s substantive rights. The Circular’s appeals procedure does not affect the guidelines management must follow when making a contracting-out decision. Therefore, section 7117(a)(1) is not a bar to negotiation of the Union’s proposal.
D.
HHS next argues that the Circular is not a law, rule, or regulation within the meaning of section 7103(a)(9) and is not an applicable law within the meaning of section 7106. In EEOC v. FLRA, 476 U.S. 19, 106 S.Ct. 1678, 1680, 90 L.Ed.2d 19 (1986), the Supreme Court refused to reach or resolve the identical issue, because the issue had not been argued before the FLRA or the Court of Appeals. The Court stated that the Act “expressly provides that when an aggrieved party seeks judicial review of a final order of the FLRA ‘[n]o objection that has not been argued before the Authority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances.’ 5 U.S.C. § 7123(c).” EEOC v. FLRA, 106 S.Ct. at 1680. This court will not now consider the issue for the same reasons.
HHS filed its Statement of Position with the FLRA on January 17, 1986 and did not raise the above argument. The Supreme Court’s decision in EEOC v. FLRA was issued on April 29, 1986. Three months later on July 31, 1986 the FLRA rendered its decision in the instant matter. It was not until October 1, 1986 that HHS filed a “Motion to Reconsider” in light of EEOC v. FLRA. The “Motion to Reconsider” was denied as untimely because such motions are required to be filed within 10 days after service of an FLRA order. 5 C.F.R. § 2429.17.
There are no extraordinary circumstances warranting this court’s consideration of the above issue. HHS had three months after the Supreme Court’s EEOC decision to supplement its statement of position, but failed to do so. Furthermore, after the FLRA decision, HHS waited two months to file for reconsideration. Since the above argument was not timely presented to the FLRA, according to section 7123(c) of the Act, it is not within the jurisdiction of this court to consider the argument now.
IV. Conclusion
For the reasons stated herein, we conclude that the FLRA’s decision that the Union’s proposal is negotiable, should be upheld and its order should be enforced.
ENFORCED.
. OMB Circular A-76 sets guidelines for determining whether necessary goods and services should be obtained from the private sector or acquired "in house” from government facilities and personnel. Generally, government agencies acquire goods from the private sector when comparative cost analysis indicates that it would be cost effective to do so. The Circular is supplemented by a Cost Comparison Handbook outlining procedures to be used in making the decision whether or not to contract out. 44 Fed.Reg. 20556 (1979) as amended by 45 Fed. Reg. 69322 (1980); 47 Fed.Reg. 6511 (1982); id. at 46783; 48 Fed.Reg. 37110 (1983); 50 Fed.Reg. 32812 (1985).
. 5 U.S.C. § 7123(a) provides that “[a]ny person aggrieved by any final order of the Authority... may... institute an action for judicial review of the Authority’s order... in the United States court of appeals in the circuit in which the person resides or transacts business.” The Authority may petition any appropriate United States court of appeals for enforcement of any of its orders. 5 U.S.C. § 7123(b).
At first blush, it appears that there is no case or controversy. HHS has indicated that it will adhere to the guidelines of the Circular whether or not the Union’s proposal is adopted as part of the collective bargaining agreement between HHS and the Union. HHS and the FLRA do argue over the proposal's negotiability, however. HHS contends that adoption of the Union’s proposal would, for the first time, subject disputes relating to management's decisions to contract-out work to the Act’s grievance procedures and is therefore nonnegotiable as an infringement on management’s reserved authority. The FLRA, on the other hand, contends that such grievances have always been subject to the Act’s grievance procedures. One of the purposes of the Act is to encourage negotiation over prospective as well as current problems. Agreement as to how particular problems will be handled prior to their occurrence greatly reduces conflict in the event such problems do arise. The fact that there is no current controversy concerning a specific contracting-out decision does not mean this court lacks jurisdiction to determine the proposal’s negotiability. Whether management has a duty to bargain under the Act over a particular proposal is a controversy in and of itself over which this court has jurisdiction. The cases which have found that jurisdiction exists to determine the negotiability of a specific proposal are legion. See, e.g., Defense Language Institute v. FLRA, 767 F.2d 1398 (9th Cir.1985), cert. dismissed, — U.S. -, 106 S.Ct. 2004, 90 L.Ed.2d 647 (1986) (proposal requiring adherence to OMB Circular A-76 held nonnegotiable); EEOC v. FLRA, 744 F.2d 842 (D.C.Cir.1984), cert. dismissed, — U.S. -, 106 S.Ct. 1678, 90 L.Ed.2d 19 (1986) (proposal requiring adherence to OMB Circular A-76 held negotiable); see also, American Federation of Government Employees, Local 1931 v. FLRA, 802 F.2d 1159 (9th Cir.1986) (management’s policy of expeditious suspension of driving privileges held to be a nonnegotiable internal security practice); Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir.1986) (union proposal held nonnegotiable because it would violate SSA’s right to assign work); Association of Civilian Technicians v. FLRA, 780 F.2d 12 (7th Cir.1985) (proposal relating to requirement that civilian technicians wear military uniforms while performing their nonmilitary duties is nonnegotiable); United States Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C.Cir.1983) (proposal to bring probationary employees within mandatory grievance procedure held nonnegotiable); State of Nebraska Military Dept., Office of the Adjutant General v. FLRA, 705 F.2d 945 (8th Cir.1983) (proposals for grievance procedures culminating in binding arbitration found nonnegotiable because in conflict with the National Guard Technicians Act).
. Section 7106 provides in pertinent part:
(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency—
(2) In accordance with applicable laws—
(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted:
(b) Nothing in this section shall preclude any agency and any labor organization from negotiating—
(2) procedures which management officials of the agency will observe in exercising any authority under this section;
5 U.S.C. §§ 7106(a)(2)(B), (b)(2).
. HHS assumes that if the Union’s proposal is not adopted then arbitral review under the Act of management’s compliance with the Circular would be unavailable. As shown in Part B infra, however, HHS’s contracting-out decisions are subject to arbitral review regardless of whether the Union’s proposal is adopted.
. Our dissenting brother suggests that "an arbitral decision that applied Circular A-76 erroneously would not be subject to judicial review” because no unfair labor practice would be involved, as required by § 7123(a)(1). (Dissent, op. at 445-446). The dissent has overlooked the impact of decisions to contract out. The practical effect of such decisions is the shifting of work to the nonunion sector from union employees. As a result, challenges to contracting out decisions will typically be accompanied by unfair labor practice charges of antiunion discrimination. See 5 U.S.C. §§ 7116(a)(1), (2) and 7123(a)(1). Therefore, arbitral decisions erroneously applying Circular A-76 will almost always be subject to judicial review.
. The management rights clause which appears in the Act was adopted as an amendment on the House floor to the clause reported by the House Committee on Post Office and Civil Service. The Udall compromise rejected the version of the bill reported by the Senate which simply codified the existing practices and decisions under existing Executive Order 11491. S.Rep. No. 95-969, 95th Cong., 2d Sess. (1978), U.S.Code Cong. & Admin.News 1978, p. 2723, reprinted in House of Representatives Committee on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Civil Service Reform Act of 1978 (hereinafter cited as Legislative History) at 1476. The amendment adopted on the House floor was adopted by the House-Senate Conference Committee without change. H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 153-54 (1978) (Conference Report), U.S.Code Cong. & Admin.News 1978, p. 2723, reprinted in Legislative History at 1995, 96.
. The Federal Labor Relations Council, which interpreted the Executive Order previously governing federal labor management relations, had broadly construed the management rights protected by that order. See 124 Cong.Rec. H-9638 (1978), reprinted in
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "agency whose first word is "federal"". Which specific federal government agency best describes this litigant?
A. Federal Aviation Administration
B. Federal Bureau of Investigation (FBI)
C. Federal Coal Mine Safety Board
D. Federal Communications Commission
E. Federal Deposit Insurance Corporation and FSLIC
F. Federal Election Commission
G. Federal Energy Agency (Federal Power Commission)
H. Federal Energy Regulatory Commission
I. Federal Home Loan Bank Board
J. Federal Housing Authority (FHA)
K. Federal Labor Relations Authority
L. Federal Maritime Board
M. Federal Maritime Commission
N. Federal Mine Safety & Health Administration
O. Federal Mine Safety & Health Review Commission
P. Federal Reserve System
Q. Federal Trade Commission
Answer:
|
songer_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.
In the Matter of ALLEN UNIVERSITY, an educational corporation chartered by the State of South Carolina, Debtor.
No. 73-1897.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 9, 1974.
Decided May 16, 1974.
Gerald M. Finkel, Columbia, S. C. (Stanley H. Kohn, Kohn & Finkel, Columbia, S. C., on brief), for appellants.
David W. Robinson, Columbia, S. C. (Robinson, McFadden, Moore & Pope, Columbia, S. C., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and WINTER and WIDENER, Circuit Judges.
WIDENER, Circuit Judge:
On May 21, 1973, creditors of Allen University filed in the district court a petition under 11 U.S.C. § 526 asking that Allen University be reorganized under the provisions of Chapter X of the Bankruptcy Act, 11 U.S.C. §§ 501-676. The district court dismissed the petition on the basis that, since Allen was not a “moneyed, business, or commercial corporation” within the intendment of 11 U.S.C. § 22(b), an action could not be maintained against it for involuntary reorganization under Chapter X.
In this appeal, petitioners contest both the district court’s holding that an eleemosynary educational corporation may not be the subject of involuntary reorganization under Chapter X of the Bankruptcy Act, and also the court’s finding that Allen University is not a “moneyed, business, or commercial” corporation. We affirm both aspects of the decision of the district court.
Allen University is a nonprofit, eleemosynary educational institution operating a four-year college in Columbia, South Carolina. It is controlled and primarily supported by the African Methodist Episcopal Church of South Carolina. Indeed, a majority of its Board of Trustees is composed of ministers and representatives of this church. The Board is elected by the church conference. The petitioners in this appeal are, for the most part, teachers and employees of Allen University who are owed back wages. They claim that the university is insolvent and has preferentially paid other creditors. They also contend that the normal provisions of Chapter XI of the Bankruptcy Act are not adequate and, consequently, that the university is in need of reorganization under Chapter X in order to continue its educational work and pay its debts.
In Hoile v. Unity Life Ins. Co., 136 F.2d 133, 135 (4th Cir. 1943), we held that the eligibility of a corporation for relief under Chapter X depends in the first instance on its eligibility to be adjudged a bankrupt in ordinary bankruptcy. Thus, voluntary petitions may be filed under Chapter X by corporations which can be adjudicated bankrupt on voluntary petitions; involuntary petitions may be filed against corporations against which involuntary petitions in ordinary bankruptcy can be filed. We see no reason to depart here from our previous holding.
11 U.S.C. § 506, which defines the term “corporation” for the purposes of Chapter X, states that “ ‘corporation’ shall mean a corporation, as defined in this title, which could be adjudicated a bankrupt under this title. . . . ” [Emphasis added.] 11 U.S.C. § 1 provides, for purposes of the Bankruptcy Act, that “[p]ersons shall include corporations except where otherwise specified. . . . ” 11 U.S.C. § 22(a) provides that “[a]ny person, except a municipal, railroad, insurance, or banking corporation or a building and loan association, shall be entitled to the benefits of this title as a voluntary bankrupt.” Thus, under this provision, in a proper case, it would seem an eleemosynary educational institution could be adjudged a bankrupt in a voluntary proceeding.
Because this proceeding is involuntary, however, we must look to subsection (b) of 11 U.S.C. § 22. The statute there provides that “[a]ny natural person, except a wage earner or farmer, and any moneyed, business, or commercial corporation, except a building and loan association, a municipal, railroad, insurance, or banking corporation, owing debts to the amount of $1,000 or over, may be adjudged an involuntary bankrupt upon default or an impartial trial and shall be subject to the provisions and entitled to the benefits of this title.” Consequently, in order to be adjudged an involuntary bankrupt under Chapter XI, or to be involuntarily reorganized under Chapter X, a debtor corporation must fall within the definition of “moneyed, business, or commercial.” Hoile v. Unity Life Ins. Co., 136 F.2d 133 (4th Cir. 1943); accord, In re Michigan Sanitarium & Benevolent Ass’n., 20 F.Supp. 979 (E.D.Mich.1937); contra, In re Maryvale Community Hospital, Inc., 307 F.Supp. 304, 306 n. 4 (D.Ariz.1969), aff’d per curiam, 456 F.2d 410 (9th Cir. 1972).
By judicial interpretation, the phrase “moneyed, business, or commercial corporation” has acquired a meaning which limits it to corporations organized for profit. See Hoile v. Unity Life Ins. Co., 136 F.2d 133, 135 (4th Cir. 1943). Although Allen University has been chartered as a corporation, as the petition alleges, there is neither capital stock in the corporation nor a return of capital to investors outstanding. Indeed the record discloses no investors. Moreover, although it may be true, as the district court found, that the University carries on a number of activities, some of which could, standing alone, be characterized as commercial in nature, including the operation of a day-care center and University apartments, offering of certain printing services to the public, leasing of two houses in Columbia, and the operation of Reed Center in Charleston, these activities are only ancillary to the institution’s main purpose of education. We are of opinion that such ancillary activities do not bring Allen University within the realm of a “moneyed, business, or commercial corporation.”
Accordingly, the district court property sustained the plea to the jurisdiction, and its decision is
Affirmed.
. Accord, 6 Collier on Bankruptcy ¶ 2.07 [2] (14th Ed.1972); 11 Remington on Bankruptcy §§ 4416, 4424 (1961 rev.).
. Similarly, the fact that, according tb its charter, Allen University may sue and be sued should not be determinative of its status as a “moneyed, business, or commercial corporation,” since, under general South Carolina law, charitable corporations may sue and are subject to suit. S.C.Code Ann. § 12-758 (Cum.Supp.1971).
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
sc_lcdispositiondirection
|
B
|
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
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 ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
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.
SMILEY v. CITIBANK (SOUTH DAKOTA), N. A.
No. 95-860.
Argued April 24, 1996
Decided June 3, 1996
Scalia, J., delivered the opinion for a unanimous Court.
Michael D. Donovan argued the cause for petitioner. With him on the briefs were Pamela P. Bond, Patrick J. Grannan, Robin B. Howald, and Michael P. Malakoff.
Richard B. Kendall argued the cause for respondent. With him on the brief were Michael H. Strub, Jr., Louis R. Cohen, Ronald J. Greene, and Christopher R. Lipsett.
Irving L. Gornstein argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Barbara C. Biddle, Jacob M. Lewis, Julie L. Williams, L. Robert Griffin, and Joan M. Bernott.
Briefs of amici curiae urging reversal were filed for the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, Ernest L. Sarason, Jr., Assistant Attorney General, Charles F. C. Ruff, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective States as follows: Winston Bryant of Arkansas, Richard Blumenthal of Connecticut, Robert A. But-terworth of Florida, Thomas J. Miller of Iowa, A. B. Chandler of Kentucky, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of New Jersey, Tom Udall of New Mexico, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Jeffrey B. Pine of Rhode Island, Charles W. Burson of Tennessee, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, Christine Gregoire of Washington, and Darrell V. McGraw, Jr., of West Virginia; for the Bankcard Holders of America by Kennedy P. Richardson; for Consumer Action by James C. Sturdevcmt; and for the National Consumer Law Center et al. by Mark A Chavez and Patricia Sturdevant.
Briefs of amici curiae urging affirmance were filed for the State of Colorado et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Carter G. Phillips, and James M. Harris, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Gale A Norton of Colorado, M. Jane Brady of Delaware, Michael J. Bowers of Georgia, Jim Ryan of Illinois, Joseph P. Ma-zurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Thomas W. Corbett, Jr., of Pennsylvania, Mark Barnett of South Dakota, Jan Graham of Utah, and James S. Gilmore III of Virginia; for Affinity Group Marketing et al. by Theodore W. Kheel; for the American Bankers Association et al. by Shirley M. Huf-stedler, L. Richard Fischer, James A. Huizinga, and W. Stephen Smith; for Greenwood Trust Co. et al. by Arthur R. Miller, Alan S. Kaplinsky, and Burt M. Rublin; for the New York Clearing House Association by John L. Warden and Richard J. TJrowsky; and for Trial Lawyers for Public Justice et al. by Ann Miller and Adele P. Kimmel.
Justice Scalia
delivered the opinion of the Court.
Section 30 of the National Bank Act of 1864, Rev. Stat. § 5197, as amended, 12 U. S. C. § 85, provides that a national bank may charge its loan customers “interest at the rate allowed by the laws of the State... where the bank is located.” In Marquette Nat. Bank of Minneapolis v. First of Omaha Service Corp., 439 U. S. 299 (1978), we held that this provision authorizes a national bank to charge out-of-state credit-card customers an interest rate allowed by the bank’s home State, even when that rate is higher than what is permitted by the States in which the cardholders reside. The question in this case is whether §85 also authorizes a national bank to charge late-payment fees that are lawful in the bank’s home State but prohibited in the States where the cardholders reside—in other words, whether the statutory term “interest” encompasses late-payment fees.
I
Petitioner, a resident of California, held two credit cards— a “Classic Card” and a “Preferred Card”—issued by respondent, a national bank located in Sioux Falls, South Dakota. The Classic Card agreement provided that respondent would charge petitioner a late fee of $15 for each monthly period in which she failed to make her minimum monthly payment within 25 days of the due date. Under the Preferred Card agreement, respondent would impose a late fee of $6 if the minimum monthly payment was not received within 15 days of its due date; and an additional charge of $15 or 0.65% of the outstanding balance on the Preferred Card, whichever was greater, if the minimum payment was not received by the next minimum monthly payment due date. Petitioner was charged late fees on both cards.
These late fees are permitted by South Dakota law, see S. D. Codified Laws §§54-3-1, 54-3-1.1 (1990 and Supp. 1995). Petitioner, however, is of the view that exacting such “unconscionable” late charges from California residents violates California law, and in 1992 brought a class action against respondent on behalf of herself and other California holders of respondent’s credit cards, asserting various statutory and common-law claims. Respondent moved for judgment on the pleadings, contending that petitioner’s claims were pre-empted by §85. The Superior Court of Los Angeles County initially denied respondent’s motion, but the California Court of Appeal, Second Appellate District, issued a writ of mandate directing the Superior Court to either grant the motion or show cause why it should not be required to do so. The Superior Court chose the former course, and the Court of Appeal affirmed its dismissal of the complaint, 26 Cal. App. 4th 1767, 32 Cal. Rptr. 2d 562 (1994). The Supreme Court of California granted review and affirmed, two justices dissenting. 11 Cal. 4th 138, 900 P. 2d 690 (1995). We granted certiorari. 516 U. S. 1087 (1996).
II
In light of the two dissents from the opinion of the Supreme Court of California, see 11 Cal. 4th, at 165, 177, 900 P. 2d, at 708, 716 (Arabian, J., dissenting, and George, J., dissenting), and in light of the opinion of the Supreme Court of New Jersey creating the conflict that has prompted us to take this case, it would be difficult indeed to contend that the word “interest” in the National Bank Act is unambiguous with regard to the point at issue here. It is our practice to defer to the reasonable judgments of agencies with regard to the meaning of ambiguous terms in statutes that they are charged with administering. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). As we observed only last Term, that practice extends to the judgments of the Comptroller of the Currency with regard to the meaning of the banking laws. “The Comptroller of the Currency,” we said, “is charged with the enforcement of banking laws to an extent that warrants the invocation of [the rule of deference] with respect to his deliberative conclusions as to the meaning of these laws.” NationsBank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251, 256-257 (1995) (citations and internal quotation marks omitted).
On March 3,1995, which was after the California Superior Court’s dismissal of petitioner’s complaint, the Comptroller of the Currency noticed for public comment a proposed regulation dealing with the subject before us, see 60 Fed. Reg. 11924, 11940, and on February 9, 1996, which was after the California Supreme Court’s decision, he adopted the following provision:
“The term ‘interest’ as used in 12 U. S. C. § 85 includes any payment compensating a creditor or prospective creditor for an extension of credit, making available of a line of credit, or any default or breach by a borrower of a condition upon which credit was extended. It includes, among other things, the following fees connected with credit extension or availability: numerical periodic rates, late fees, not sufficient funds (NSF) fees, over limit fees, annual fees, cash advance fees, and membership fees. It does not ordinarily include appraisal fees, premiums and commissions attributable to insurance guaranteeing repayment of any extension of credit, finders’ fees, fees for document preparation or notarization, or fees incurred to obtain credit reports.” 61 Fed. Reg. 4869 (to be codified in 12 CFR § 7.4001(a)).
Petitioner proposes several reasons why the ordinary rule of deference should not apply to this regulation. First, petitioner points to the fact that this regulation was issued more than 100 years after the enactment of § 85, and seemingly as a result of this and similar litigation in which the Comptroller has participated as amicus curia# on the side of the banks. The 100-year delay makes no difference. To be sure, agency interpretations that are of long standing come before us with a certain credential of reasonableness, since it is rare that error would long persist. But neither antiquity nor contemporaneity with the statute is a condition of validity. We accord deference to agencies under Chevron, not because of a presumption that they drafted the provisions in question, or were present at the hearings, or spoke to the principal sponsors; but rather because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows. See Chevron, supra, at 843-844. Nor does it matter that the regulation was prompted by litigation, including this very suit. Of course we deny deference “to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice,” Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212 (1988). The deliberateness of such positions, if not indeed their authoritativeness, is suspect. But we have before us here a full-dress regulation, issued by the Comptroller himself and adopted pursuant to the notice-and-comment procedures of the Administrative Procedure Act designed to assure due deliberation, see 5 U. S. C. § 553; Thompson v. Clark, 741 F. 2d 401, 409 (CADC 1984). That it was litigation which disclosed the need for the regulation is irrelevant.
Second, petitioner contends that the Comptroller’s regulation is not deserving of our deference because “there is no rational basis for distinguishing the various charges [it] has denominated interest. . . from those charges it has denominated ‘non-interest.’” Reply Brief for Petitioner 14. We disagree. As an analytical matter, it seems to us perfectly possible to draw a line, as the regulation does, between (1) “payment compensating a creditor or prospective creditor for an extension of credit, making available of a line of credit, or any default or breach by a borrower of a condition upon which credit was extended,” and (2) all other payments. To be sure, in the broadest sense all payments connected in any way with the loan — including reimbursement of the lender’s costs in processing the application, insuring the loan, and appraising the collateral — can be regarded as “compensating [the] creditor for [the] extension of credit.” But it seems to us quite possible and rational to distinguish, as the regulation does, between those charges that are specifically as signed, to such expenses and those that are assessed for simply making the loan, or for the borrower’s default. In its logic, at least, the line is not “arbitrary [or] capricious,” and thereby disentitled to deference under Chevron, see 467 U. S., at 844. Whether it is “arbitrary [or] capricious” as an interpretation of what the statute means — or perháps even (what Chevron also excludes from deference) “manifestly contrary to the statute” — we will discuss in the next Part of this opinion.
Finally, petitioner argues that the regulation is not entitled to deference- because it is inconsistent with positions taken by the Comptroller in the past. Of course the mere fact that an agency interpretation contradicts a prior agency position is not fatal. Sudden and unexplained change, see, e. g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 46-57 (1983), or change that does not take account of legitimate reliance on prior interpretation, see, e. g., United States v. Pennsylvania Industrial Chemical Corp., 411 U. S. 655, 670-675 (1973); NLRB v. Bell Aerospace Co., 416 U. S. 267, 295 (1974), may be “arbitrary, capricious [or] an abuse of discretion,” 5 U. S. C. § 706(2)(A). But if these pitfalls are avoided, change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.
In any case, we do not think that anything which can accurately be described as a change of official agency position has occurred here. The agency’s Notice of Proposed Rule-making asserted that the new regulation “reflects] current law and [Office of the Comptroller of the Currency (OCC)] interpretive letters,” 60 Fed. Reg. 11929 (1995), and the Statement of Basis and Purpose accompanying the final adoption stated that “[t]he final ruling is consistent with OCC interpretive letters in this area . . . and reflects the position the OCC has taken in amicus curiae briefs in litigation pending in many state and Federal courts,” 61 Fed. Reg. 4859 (1996) (citing OCC interpretive letters). Petitioner points only to (1) a June 1964 letter from the Comptroller to the President’s Committee on Consumer Interests, which states that “[c]harges for late payments, credit life insurance, recording fees, documentary stamp are illustrations of charges which are made by some banks which would not properly be characterized as interest,” see App. to Brief for Petitioner 5a; and (2) a 1988 opinion letter from the Deputy Chief Counsel of the OCC stating “it is my position that [under §85] the laws of the states where the banks are located . . . determine whether or not the banks can impose the foregoing fees and charges [including late fees] on Iowa residents,” OCC Interpretive Letter No. 452, reprinted in 1988-1989 Transfer Binder, CCH Fed. Banking L. Rep. ¶ 85,676, p. 78,064 (1988). We doubt whether either of these statements was sufficient in and of itself to establish a binding agency policy — the former, because it was too informal, and the latter because it only purported to represent the position of the Deputy Chief Counsel in response to an inquiry concerning particular banks. Nor can it even be argued that the two statements reflect a prior agency policy, since, in addition to contradicting the regulation before us here, they also contradict one another — the former asserting that “interest” is a nationally uniform concept, and the latter that it is to be determined by reference to state law. What these statements show, if anything, is that there was good reason for the Comptroller to promulgate the new regulation, in order to eliminate uncertainty and confusion.
In addition to offering these reasons why 12 CFR § 7.4001(a) in particular is not entitled to deference, petitioner contends that no Comptroller interpretation of § 85 is entitled to deference, because §85 is a provision that preempts state law. She argues that the “presumption against . . . pre-emption” announced in Cipollone v. Liggett Group, Inc., 505 U. S. 504, 518 (1992), in effect trumps Chevron, and requires a court to make its own interpretation of § 85 that will avoid (to the extent possible) pre-emption of state law. This argument confuses the question of the substantive (as opposed to pre-emptive) meaning of a statute with the question of whether a statute is pre-emptive. We may assume (without deciding) that the latter question must always be decided de novo by the courts. That is not the question at issue here; there is no doubt that §85 pre-empts state law. In Marquette Nat. Bank of Minneapolis v. First of Omaha Service Corp., 439 U. S. 299 (1978), we dismissed petitioners’ argument that the “exportation” of interest rates from the bank’s home State would “significantly impair the ability of States to enact effective usury laws” with the observation that “[t]his impairment . . . has always been implicit in the structure of the National Bank Act .... [T]he protection of state usury laws is an issue of legislative policy, and any plea to alter §85 to further that end is better addressed to the wisdom of Congress than to the judgment of this Court.” Id., at 318-319. What is at issue here is simply the meaning of a provision that does not (like the provision in Cipo llone) deal with pre-emption, and hence does not bring into play the considerations petitioner raises.
HH HH HH
Since we have concluded that the Comptrollers regulation deserves deference, the question before us is not whether it represents the best interpretation of the statute, but whether it represents a reasonable one. The answer is obviously yes.
Petitioner argues that the late fees charged by respondent do. not constitute “interest” because they “do not vary based on the payment owed or the time period of delay.” Brief for Petitioner 32-33. We do not think that such a limitation must be read into the statutory term. Most legal dictionaries of the era of the National Bank Act did not place such a limitation upon “interest.” See, e. g., 1 J. Bouvier, A Law Dictionary 652 (6th ed. 1856) (“The compensation which is paid by the borrower to the lender or by the debtor to the creditor for... use [of money]”); 2 A. Burrill, A Law Dictionary and Glossary 90 (2d ed. 1860); 11 American and English Encyclopedia of Law 379 (J. Merrill ed. 1890). But see J. Wharton, Law Lexicon or Dictionary of Jurisprudence 391 (2d Am. ed. 1860). The definition of “interest” that we ourselves set out in Brown v. Hiatts, 15 Wall. 177, 185 (1873), decided shortly after the enactment of the National Bank Act, likewise contained no indication that it was limited to charges expressed as a function of time or of amount owing: “Interest is the compensation allowed by law, or fixed by the parties, for the use or forbearance of money or as damages for its detention.” See also Hollowell v. Southern Building & Loan Assn., 120 N. C. 286, 26 S. E. 781 (1897) (“[A]ny charges made against [the borrower] in excess of the lawful rate of interest, whether called ‘fines,’ ‘charges,’ ‘dues,’ or ‘interest,’ are in fact interest, and usurious”).
Petitioner suggests another source for the asserted requirement that the charges be time- and rate-based: What is authorized by § 85, she notes, is the charging of interest “at the rate allowed” by the laws of the bank’s home State. This requires, in her view, that the interest charges be expressed as functions of time and amount owing. It would be surprising to find such a requirement in the Act, if only because it would be so pointless. Any flat charge may, of course, readily be converted to a percentage charge — which was indeed the basis for 19th-century decisions holding that flat charges violated state usury laws establishing maximum “rates.” See, e. g., Craig v. Pleiss, 26 Pa. 271, 272-273 (1856); Hollowell, supra, at 286, 26 S. E., at 781. And there is no apparent reason why home-state-approved percentage charges should be permissible but home-state-approved flat charges unlawful. In any event, common usage at the time of the National Bank Act prevents the conclusion that the Comptroller’s refusal to give the word “rate” the narrow meaning petitioner demands is unreasonable. The 1849 edition of Webster’s gives as one of the definitions of “rate” the “[p]rice or amount stated or fixed on any thing.” N. Webster, American Dictionary of the English Language 910. To illustrate this sense of the word, it provides the following examples: “A king may purchase territory at too dear a rate. The rate of interest is prescribed by law.” Ibid. Cf. 2 Bou-vier, supra, at 421 (defining “rate of exchange” as “the price at which a bill drawn in one country upon another, may be sold in the former”).
Finally, petitioner contends that the late fees cannot be “interest” because they are “penalties.” To support that dichotomy, she points to our opinion in Meilink v. Unemployment Reserves Comm’n of Cal., 314 U. S. 564, 570 (1942). But Meilink involved a provision of the Bankruptcy Act that disallowed debts owing to governmental entities “as a penalty,” except for “the amount of the pecuniary loss sustained by the act. . . out of which the penalty . . . arose, with . . . such interest as may have accrued thereon according to law.” Id., at 566. Obviously, this provision uses “interest” to mean only that interest which is exacted as commercial compensation, and not that interest which is exacted as a penalty. A word often takes on a more narrow connotation when it is expressly opposed to another word: “car,” for example, has a broader meaning by itself than it does in a passage speaking of “cars and taxis.” In §85, the term “interest” is not used in contradistinction to “penalty,” and there is no reason why it cannot include interest charges imposed for that purpose. More relevant than Meilink, is our opinion in Citizens’ Nat. Bank of Kansas City v. Donnell, 195 U. S. 369 (1904), which did involve §85 (or, more precisely, its predecessor, Rev. Stat. § 5197). There, a bank argued that a 12% charge on overdrafts did not violate a state law setting an 8% ceiling on interest rates because, inter alia, the overdraft charge “was a penalty because of a failure to pay a debt when due.” Id., at 373-374. We dismissed the argument out of hand: “The suggestions as to the twelve per cent charge on overdrafts do not seem to us to need answer.” Id., at 374.
* * *
Petitioner devotes much of her brief to the question whether the meaning of “interest” in § 85 can constitutionally be left to be defined by the law of the bank’s home State — a question that is not implicated by the Comptroller’s regulation. Because the regulation is entitled to deference, and because the Comptroller’s interpretation of §85 is not an unreasonable one, the decision of the Supreme Court of California must be affirmed.
It is so ordered.
By way of common-law claims, petitioner’s complaint alleged breach of duty of good faith and fair dealing; unjust enrichment; fraud and deceit; negligent misrepresentation; and breach of contract. It also alleged violation of Cal. Bus. & Prof. Code Ann. § 17200 (West Supp. 1996) (prohibiting unlawful business practices) and Cal. Civ. Code Ann. §1671 (West 1985) (invalidating unreasonable liquidated damages).
Sherman v. Citibank (South Dakota), N. A., 143 N. J. 35, 668 A. 2d 1036 (1995). The Supreme Court of Colorado and the United States Court of Appeals for the First Circuit have adopted the same interpretation as the Supreme Court of California. See Copeland v. MBNA America Bank, N. A., 907 P. 2d 87 (Colo. 1995); Greenwood Trust Co. v. Massachusetts, 971 F. 2d 818, 829-831 (CA1 1992) (dictum), cert. denied, 506 U. S. 1052 (1993).
In a four-line footnote on the last page of her reply brief, and unpur-sued in oral argument, petitioner raised the point that deferring to the regulation in this case involving antecedent transactions would make the regulation retroactive, in violation of Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 208-209 (1988). Reply Brief for Petitioner 20, n. 17. There might be substance to this point if the regulation replaced a prior agency interpretation — which, as we have discussed, it did not. Where, however, a court is addressing transactions that occurred at a time when there was no clear agency guidance, it would be absurd to ignore the agency’s current authoritative pronouncement of what the statute means.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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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.
MARKS et al. v. UNITED STATES
No. 75-708.
Argued November 1-2, 1976
Decided March 1, 1977
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Stewart and Marshall, JJ., joined, post, p. 197. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 198.
Robert Eugene Smith argued the cause for petitioners. With him on the brief were Gilbert H. Deitch and Andrew Dennison.
Solicitor General Bork argued the cause for the United States. With him on the brief were Assistant Attorney General Thornburgh and Jerome M. Feit.
Mr. Justice Powell
delivered the opinion of the Court.
This case presents the question, not fully answered in Hamling v. United States, 418 U. S. 87 (1974), whether the standards announced in Miller v. California, 413 U. S. 15 (1973), are to be applied retroactively to the potential detriment of a defendant in a criminal case. We granted certiorari, 424 U. S. 942 (1976), to resolve a conflict in the Circuits.
I
Petitioners were charged with several counts of transporting obscene materials in interstate commerce, in violation of 18 U. S. C. § 1465, and with conspiracy to transport such materials, 18 U. S. C. § 371. The conduct that gave rise to the charges covered a period through February 27, 1973. Trial did not begin until the following October. In the interim, on June 21, 1973, this Court decided Miller v. California, supra, and its companion cases. Miller announced new standards for “isolat[ing] ‘hard core’ pornography from expression protected by the First Amendment.” 413 U. S., at 29. That these new standards would also guide the future interpretation of the federal obscenity laws was clear from United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 129-130, and n. 7 (1973), decided the same day as Miller. See Hamling v. United States, supra, at 105, 113-114.
Petitioners argued in the District Court that they were entitled to jury instructions not under Miller, but under the more favorable formulation of Memoirs v. Massachusetts, 383 U. S. 413 (1966) (plurality opinion). Memoirs, in their view, authoritatively stated the law in effect prior to Miller, by which petitioners charted their course of conduct. They focused in particular on the third part of the Memoirs test. Under it, expressive material is constitutionally protected unless it is “utterly without redeeming social value.” 383 U. S., at 418. Under Miller the comparable test is “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U. S., at 24. Miller, petitioners argue, casts a significantly wider net than Memoirs. To apply Miller retroactively, and thereby punish conduct innocent under Memoirs, violates the Due Process Clause of the Fifth Amendment—much as retroactive application of a new statute to penalize conduct innocent when performed would violate the Constitution’s ban on ex post facto laws, Art. I, § 9, cl. 3; § 10, cl. 1. The District Court overruled these objections and instructed the jury under the Miller standards. Petitioners were convicted, and a divided Court of Appeals for the Sixth Circuit affirmed. 520 F. 2d 913 (1975). We now reverse.
II
The Ex Post Facto Clause is a limitation upon the powers of the Legislature, see Calder v. Bull, 3 Dall. 386 (1798), and does not of its own force apply to the Judicial Branch of government. Frank v. Mangum, 237 U. S. 309, 344 (1915). But the principle on which the Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. See United States v. Harriss, 347 U. S. 612, 617 (1954); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment. In Bouie v. City of Columbia, 378 U. S. 347 (1964), a case involving the cognate provision of the Fourteenth Amendment, the Court reversed trespass convictions, finding that they rested on an unexpected construction of the state trespass statute by the State Supreme Court:
“[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. . . . If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” Id., at 353-354.
Similarly, in Rabe v. Washington, 405 U. S. 313 (1972), we reversed a conviction under a state obscenity law because it rested on an unforeseeable judicial construction of the statute. We stressed that reversal was mandated because affected citizens lacked fair notice that the statute would be thus applied.
Relying on Bouie, petitioners assert that Miller and its companion cases unforeseeably expanded the reach of the federal obscenity statutes beyond what was punishable under Memoirs. The Court of Appeals rejected this argument. It noted—correctly—that the Memoirs standards never commanded the assent of more than three Justices at any one time, and it apparently concluded from this fact that Memoirs never became the law. By this line of reasoning, one must judge whether Miller expanded criminal liability by looking not to Memoirs but to Roth v. United States, 354 U. S. 476 (1957), the last comparable plenary decision of this Court prior to Miller in which a majority united in a single opinion announcing the rationale behind the Court’s holding. Although certain language in Roth formed the basis for the plurality’s formulation in Memoirs, Roth’s test for distinguishing obscenity from protected speech was a fairly simple one to articulate: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U. S., at 489. If indeed Roth, not Memoirs, stated the applicable law prior to Miller, there would be much to commend the apparent view of the Court of Appeals that Miller did not significantly change the law.
But we think the basic premise for this line of reasoning is faulty. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .” Gregg v. Georgia, 428 U. S. 153, 169 n. 15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Three Justices joined in the controlling opinion in Memoirs. Two others, Mr. Justice Black and Mr. Justice Douglas, concurred on broader grounds in reversing the judgment below. 383 U. S., at 421, 424. They reiterated their well-known position that the First Amendment provides an absolute shield against governmental action aimed at suppressing obscenity. Mr. Justice Stewart also concurred in the judgment, based on his view that only “hardcore pornography” may be suppressed. Id., at 421. See Ginzburg v. United States, 383 U. S. 463, 499 (1966) (Stewart, J., dissenting). The view of the Memoirs plurality therefore constituted the holding of the Court and provided the governing standards. Indeed, every Court of Appeals that considered the question between Memoirs and Miller so read our decisions. Materials were deemed to be constitutionally protected unless the prosecution carried the burden of proving that they were “utterly without redeeming social value,” and otherwise satisfied the stringent Memoirs requirements.
Memoirs therefore was the law. Miller did not simply clarify Roth; it marked a significant departure from Memoirs. And there can be little doubt that the third test announced in Miller—whether the work “lacks serious literary, artistic, political, or scientific value”—expanded criminal liability. The Court in Miller expressly observed that the “utterly without redeeming social value” test places on the prosecutor “a burden virtually impossible to discharge under our criminal standards of proof.” 413 U. S., at 22. Clearly it was thought that some conduct which would have gone unpunished under Memoirs would result in conviction under Miller.
This case is not strictly analogous to Bouie. The statutory language there was “narrow and precise," 378 U. S., at 352, and that fact was important to our holding that the expansive construction adopted by the State Supreme Court deprived the accused of fair warning. In contrast, the statute involved here always has used sweeping language to describe that which is forbidden. But precisely because the statute is sweeping, its reach necessarily has been confined within the constitutional limits announced by this Court. Memoirs severely restricted its application. Miller also restricts its application beyond what the language might indicate, but Miller undeniably relaxes the Memoirs restrictions. The effect is the same as the new construction in Bouie. Petitioners, engaged in the dicey business of marketing films subject to possible challenge, had no fair warning that their products might be subjected to the new standards.
We have taken special care to insist on fair warning when a statute regulates expression and implicates First Amendment values. See, e. g., Buckley v. Valeo, 424 U. S. 1, 40-41 (1976); Smith v. Goguen, 415 U. S. 566, 573 (1974). Section 1465 is such a statute. We therefore hold, in accordance with Bouie, that the Due Process Clause precludes the application to petitioners of the standards announced in Miller v. California, to the extent that those standards may impose criminal liability for conduct not punishable under Memoirs. Specifically, since the petitioners were indicted for conduct occurring prior to our decision in Miller, they are entitled to jury instructions requiring the jury to acquit unless it finds that the materials involved are “utterly without redeeming social value.” At the same time we reaffirm our holding in Hamling v. United States, 418 U. S., at 102, that “any constitutional principle enunciated in Miller which would serve to benefit petitioners must be applied in their case.”
Accordingly, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Two Courts of Appeals have found instructions derived from Miller appropriate in prosecutions based on conduct occurring before the Miller decision came down: United States v. Marks, 520 F. 2d 913 (CA6 1975) (the instant case); and United States v. Friedman, 528 F. 2d 784 (CA10 1976), cert. pending, No. 75-1663. Three Courts of Appeals have reversed convictions where Miller instructions were given by the District Court: United States v. Wasserman, 504 F. 2d 1012 (CA5 1974); United States v. Jacobs, 513 F. 2d 564 (CA9 1974); United States v. Sherpix, Inc., 168 U. S. App. D. C. 121, 512 F. 2d 1361 (1975).
In two earlier cases both conduct and trial occurred prior to Miller, and the jury instructions were derived from Memoirs v. Massachusetts, 383 U. S. 413 (1966) (plurality opinion). United States v. Thevis, 484 F. 2d 1149 (CA5 1973) (Thevis I), cert. denied, 418 U. S. 932 (1974); United States v. Palladino, 490 F. 2d 499 (CA1 1974). The Courts of Appeals there, foreshadowing to some extent our later decision in Hamling v. United States, held that Miller did not void all Memoirs-based convictions, but that on review appellants were entitled to all the benefits of both the Miller and Memoirs standards. See Hamling, 418 U. S., at 102. In later cases presenting similar facts, the Fifth Circuit has applied its holding in Thevis I. See, e. g., United States v. Linetsky, 533 F. 2d 192 (1976); United States v. Thevis, 526 F. 2d 989 (1976) (Thevis II), cert. denied, 429 U. S. 928 (1976). See also United States v. Hill, 500 F. 2d 733 (CA5 1974), cert. denied, 420 U. S. 952 (1975). And the Ninth Circuit, following Hamling, has reached the same result. United States v. Cutting, 538 F. 2d 835 (1976) (en banc), cert. denied, 429 U. S. 1052 (1977).
Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. California, 413 U. S. 115 (1973); United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U. S. 139 (1973).
Miller held:
“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U. S., at 24.
Under part (b) of the test, it is adequate if the statute, as written or as judicially construed, specifically defines the sexual conduct, depiction of which is forbidden. The Court in Miller offered examples of what a State might constitutionally choose to regulate:
“(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
“(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Id., at 25.
The plurality in Memoirs held that “three elements must coalesce” if material is to be found obscene and therefore outside the protection of the First Amendment:
"[I]t must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” 383 U. S., at 418.
Petitioner American News Co., Inc., was convicted only on the conspiracy charge. The other four petitioners were convicted of conspiracy and also on seven of the eight substantive counts.
Both in its brief and at oral argument in this Court the United States contended that petitioners’ convictions under the Miller standards were improper, and consequently the Government does not defend the judgment of the Court of Appeals on this issue but agrees with petitioners that their convictions should not stand.
Shortly after Memoirs, in response to the divergence of opinion among Members of the Court, the Court began the practice of disposing of obscenity cases in brief per curiam decisions. Redrup v. New York, 386 U. S. 767 (1967), was the first. At least 31 cases were decided in this fashion. They are collected in Paris Adult Theatre I v. Slaton, 413 U. S., at 82-83, n. 8 (BRENNAN, J., dissenting).
See, e. g., Books, Inc. v. United States, 358 F. 2d 935 (CA1 1966), rev’d per curiam, 388 U. S. 449 (1967); United States v. 35 Mm. Motion Picture Film, 432 F. 2d 705 (CA2 1970), cert. dismissed sub nom. United States v. Unicorn Enterprises, Inc., 403 U. S. 925 (1971); United States v. Ten Erotic Paintings, 432 F. 2d 420 (CA4 1970); United States v. Groner, 479 F. 2d 577 (CA5) (en banc) (the seven dissenting judges and one judge concurring in the result—constituting a majority on this issue—found that Memoirs stated the governing standard), vacated and remanded for further consideration in light of Miller, 414 U. S. 969 (1973); United States v. Pellegrino, 467 F. 2d 41 (CA9 1972); Southeastern Promotions, Ltd. v. Oklahoma City, 459 F. 2d 282 (CA10 1972); Huffman v. United States, 152 U. S. App. D. C 238, 470 F. 2d 386 (1971), conviction reversed on other grounds upon rehearing after Miller, 163 U. S. App. D. C. 417, 502 F. 2d 419 (1974). Cf. Grove Press, Inc. v. City of Philadelphia, 418 F. 2d 82 (CA3 1969); Cinecom Theaters Midwest States, Inc. v. City of Fort Wayne, 473 F. 2d 1297 (CA7 1973); Luros v. United States, 389 F. 2d 200 (CA8 1968).
The statute provides in pertinent part:
“Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U. S. C. § 1465.
For this reason, the instant case is different from Rose v. Locke, 423 U. S. 48 (1975), where the broad reading of the statute at issue did not upset a previously established narrower construction.
In Hamling we rejected a challenge based on Bouie v. City of Columbia, ostensibly similar to the challenge that is sustained here. 418 U. S., at 115-116. But the similarity is superficial only. There the petitioners focused on part (b) of the Miller test. See n. 3, supra. They argued that their convictions could not stand because Miller requires that the categories of material punishable under the statute must be specifically enumerated in the statute or in authoritative judicial construction. No such limiting construction had been announced at the time they engaged in the conduct that led to their convictions. We held that this made out no claim under Bouie, for part (b) did not expand the reach of the statute. “[T]he enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U. S. C. § 1461, conduct which had not previously been thought criminal.” 418 U. S., at 116.
For the reasons noted in text, the same cannot be said of part (c) of the Miller test, shifting from “utterly without redeeming social value” to “lacks serious literary, artistic, political or scientific value.” This was implicitly recognized by the Court in Harding itself. There the trial took place before Miller, and the jury had been instructed in accordance with Memoirs. Its verdict necessarily meant that it found the materials to be utterly without redeeming social value. This Court examined the record and determined that the jury’s verdict “was supported by the evidence and consistent with the Memoirs formulation of obscenity.” 418 U. S., at 100. We did not avoid that inquiry on the ground that Memoirs had no relevance, as we might have done if Miller applied retroactively in all respects.
The Court of Appeals stated, apparently without viewing the materials, 520 F. 2d, at 923 n. 1 (McCree, J., dissenting), that in its opinion the materials here were obscene under either Memoirs or Miller. 520 F. 2d, at 922. Such a conclusion, absent other dependable means of knowing the character of the materials, is of dubious value. But even if we accept the court’s conclusion, under these circumstances it is not an adequate substitute for the decision in the first instance of a properly instructed jury, as to this important element of the offense under 18 U. S. C. § 1465.
The Court of Appeals apparently thought that our remand in Miller and the companion cases necessarily meant that Miller standards were fully retroactive. 520 F. 2d, at 920. But the passage from Hamling quoted in the text, which simply reaffirms a principle implicit in Miller, makes it clear that the remands carried no such implication. Our 1973 cases were remanded for the courts below to apply the “benefits” of Miller. See n. 3, supra.
In view of our disposition of the case, we have no occasion to reach the other questions presented in the petition.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_appnatpr
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MORAINVILLE et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 9346.
Circuit Court of Appeals, Sixth Circuit.
April 7, 1943.
Thomas Howell Scott, of Atlanta, Ga., for petitioners.
Morton K. Rothschild, of Washington, D. C. (Samuel O. Clark, Jr., Sewall Key, and J. Louis Monarch, all of Washington, D. C., on the brief), for respondent.
Before ALLEN, HAMILTON, and Mc-ALLISTER, Circuit Judges.
McAllister, circuit judge.
The question presented on this appeal is whether a transaction, whereby, on a recapitalization, a stockholder received shares of preferred stock representing accumulated unpaid dividends, was tax free under § 112 of the Internal Revenue Code, Title 26, § 112, U.S.C.A., Int.Rev.Code. It is not questioned that there was a recapitalization, and that this was a statutory reorganization as provided in § 112(g) (1) (D), Revenue Act of 1936. The Board of Tax Appeals (now the Tax Court of the United States) held that the transaction was taxable.
Petitioners were holders of shares of Second Preferred stock in the HeywoodWakefield Company. Other outstanding stock consisted of First Preferred and Common. Prior to recapitalization, accumulated unpaid dividends amounted, on the First Preferred, to $47.25 per share, and on the Second Preferred, to $50.75 per share.
On October 23, 1936, the company submitted to its stockholders a plan of recapitalization which, as finally authorized, provided among other matters for: (1) issuance of a stock dividend of two shares of $25 par value Series B First Preferred stock on each share of Second Preferred stock outstanding; (2) issuance of a cash dividend of 750; (3) issuance of four shares of Series B First Preferred stock in exchange for each share of Second Preferred stock.
At a special meeting of the stockholders on November 9, 1936, the plan was approved and declared effective November 30, 1936. The approval was by two-thirds of the stockholders of all classes, and under the laws of Massachusetts, governing the corporate transaction, such action was binding upon all stockholders. The express purpose of the plan was to simplify the capital structure and improve the balance sheet by eliminating accumulated unpaid dividends on the then outstanding preferred stock. Among the results of the recapitalization, was that the name of the First Preferred stock was designated Series A First Preferred stock, of the same par value. This was of no importance, and we shall hereafter refer to such stock as First Preferred. Second Preferred stock was changed to Series B First Preferred stock.
A holder of First Preferred stock, par value of $100, with dividend arrears of $47.25, — or an interest of $147.25 — received in exchange a debenture bond of $100 face value, at 7%, $22.25 in cash, and a share of Series B First Preferred stock 5%, of the par value of $25, — or a corresponding interest of $147.25.
A holder of a share of Second Preferred stock of the par value of $100, 7%, with dividend' arrears of $50.75, — or an interest of $150.75 — received in exchange six shares of Series B First Preferred stock, 5%, with a par value of $25 a share, and 750 in cash, — or a corresponding interest of $150.75. The only differences resulting from the exchange were that the share of First Preferred stock, with par value of $100 at 7%, was changed to a debenture bond, with a face value of $100 at 7%, and the share of Second Preferred stock of par value of $100 at 7%, was changed to 4 shares of Series B First Preferred stock, totaling $100 par value at 5% (which would draw 7% after all past dividends had been fully paid). In addition, shares of the Series B First Preferred were issued to cover the dividends in arrears, the par value of such stock corresponding to the amount of such arrearages.
We are here concerned only with a determination as to shareholders of the stock designated as Second Preferred stock before the recapitalization. It is conceded that the dividend of 750 per share was taxable and that the four shares of Series B First Preferred stock, which were received on the exchange of one share of Second Preferred stock, were non-taxable. The only issue is with regard to the two shares of Series B First Preferred stock, which were also received on the transaction, covering dividend arrears on each share of the Second Preferred stock. It is the contention of the Government that the holders of the Second Preferred shares are taxable for these two shares of Series B First Preferred stock which were received as “dividends” on each share of Second Preferred stock, on the ground that such shares were received as a stock dividend in payment of accrued dividends, and did not constitute stock or securities exchanged for stock or securities on recapitalization, within the meaning of the statute; and it is argued that the receipt of these shares in payment of accrued dividends was taxable as income under Sec. 115, 26 U.S.C.A. Int. Rev.Code.
In sum, the Government contends that the dividend of two shares of Series B, representing arrears in dividends on each share of Second Preferred stock, was subject to tax as income, for the reason that it is a dividend in payment of the arrears; that it was payable only at the option of the stockholder; that it was unnecessary for the stockholder to exchange his original holding of stock in order to receive the stock representing the accrued dividends ; and that, therefore, the distribution of the stock as dividends covering arrears in dividends, was a transaction separate from the exchange of the shares of Series B stock for the previously designated Second Preferred stock.
Section 112(b) (2) 26 U.S.C.A. Int.Rev. Code, provides as follows:
“(2) Stock for stock of same corporation. No gain or loss shall be recognized if common stock in a corporation is exchanged solely for common stock in the same corporation, or if preferred stock in a corporation is exchanged solely for preferred stock in the same corporation.”
Section 112(b) (3) 26 U.S.C.A. Int.Rev. Code, provides as follows:
“(3) Stock for stock on reorganization. No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.”
Section 112(g) (1) (E) 26 U.S.C.A. Int. Rev. Code, provides as follows:
“(g) Definition of reorganization. As used in this section and section 113—
“(1) The term “reorganization” means * * *
“(E) a recapitalization, * * *.”
The contention of the Government requires a consideration and interpretation of the following paragraph of the plan of recapitalization relating to the proposed stock transaction and the rights of Second Preferred stockholders upon acceptance:
“The Plan further contemplates that a stock dividend of two. shares of $25 par value Series B First Preferred Stock be declared on each share of Second Preferred Stock outstanding and, also a cash dividend of $0.75.
“A holder of Second Preferred Stock will, also, be offered four shares of Series B First Preferred Stock in exchange for a share of present Second Preferred Stock.
“In assenting to the Plan the holder of Second Preferred Stock will agree to accept the stock and cash dividend in full satisfaction of arrears in dividends accumulated to December 1, 1936, and further agrees to exchange his Second Preferred Stock for Series B First Preferred Stock at the ratio of four shares of Series B First Preferred to one share of Second Preferred.”
It was evidently thought proper to explain to the stockholders that the plan contemplated an exchange of the new stock for the certificate of old stock, including the arrears in dividends on such stock. Naturally, under such circumstances, it was sought to indicate to the stockholder that four of the new shares of $25 par value represented one old share of $100 par value, and that two of the new shares of $25 par value represented $50 in dividend arrears — which, together with the cash dividend of 75‡, aggregated in all, $150.75 — the par value of the old stock, including the amount of dividends in arrears. In setting forth that, in assenting to the plan, the holder of Second Preferred stock agreed to accept the cash dividend and the stock dividend to be declared in full satisfaction of arrears, and also agreed to exchange his Second Preferred for the Series B stock, the plan clearly discloses that the cash dividend, the stock dividend, and the exchange, constituted a single integrated transaction in which the terms and provisions were interdependent. To conclude that a holder of old Second Preferred stock surrendered his share for four shares of new stock only, would necessitate disregarding the terms of the recapitalization plan and ignoring the provision that on acceptance of the plan, such stockholder agreed to accept the cash and stock dividends, and the exchanged stock for his old stock including the dividends in arrears.
The stockholders’ rights to dividend arrears, if treated as separate from the stock itself, are to be considered as “securities in a corporation a party to a reorganization.” Skenandoa Rayon Corp. v. Commissioner of Internal Revenue, 2 Cir., 122 F.2d 268. The single transaction in the case before us must be considered as a transfer of six shares of new stock and a cash dividend of 75‡ in exchange for one share of old stock; and the fact that two of the shares of new stock were denominated dividends and subsequently declared as such on acceptance of the plan of recapitalization, is of no importance. On this question, the conclusions and reasoning of the Board of Tax Appeals (now the Tax Court of the United States) in the instant case, were specifically overruled by the same court in the later case of Knapp Monarch Co. v. Commissioner of Internal Revenue, 1 T.C. 59.
Much of the Government’s argument seems posited on statements in letters to stockholders, some of which are obscure, and others, apparently, erroneous. In a letter enclosing the plan of recapitalization, which was sent before the stockholders’ meeting, the president stated:
“If the Plan is accepted by the Stockholders and declared effective by the Directors, the rights of the holders of the respective classes of stock shall be as follows :
“Basis of Exchange
“First Preferred Stock
“The holders of First Preferred Stock will receive for each share of stock and its accumulated dividend rights a $100 Ten-Year Registered Debenture Bond bearing 5% interest, one share of Series B 5% Cumulative First Preferred Stock, $25 par value, and Twenty-two Dollars and Twenty-five Cents in cash.
“Second Preferred Stock
“The holders of Second Preferred Stock will receive for each share of stock and its accumulated dividend rights six shares of Series B 5% Cumulative First Preferred Stock, $25 par value, and Seventy-five Cents in cash.
“Common Stock
“No change is to be made in the Common stock.
“Effect of Capital Structure
“If all the present holders of First Preferred Stock and Second Preferred Stock assent to the Plan, these classes of stock will be retired and cancelled, and there will be outstanding only the new Series B First Preferred Stock and the Common Stock (in addition to the Debenture Bonds to be issued under the terms of the Plan).
“If such a substantial percentage of the First Preferred and Second Preferred Stockholders assent to the Plan as would warrant the Directors in their discretion to declare the Plan operative, the shares of non-assenting First and Second Preferred Stockholders will still be left outstanding.”
In a letter subsequent to the adoption of the plan by a two-thirds vote of stockholders of each class, which was binding upon all stockholders, the president observed that holders of Second Preferred stock had the right to receive cash dividends and dividends representing arrears on the old stock, whether or not they assented to the plan of recapitalization. These observations were erroneous. The undisputed testimony of the secretary of the company was that: “* * * the plan for recapitalization provided that each share of second preferred would receive 75 cents in cash and one share of Series ‘B’ first preferred (new stock par value $25.00) on December 15, 1936, and one share of Series ‘B’ first preferred on January 4, 1937, and simultaneously 4 additional shares of Series ‘B’ first preferred in exchange for the old second preferred shares. In other words, 6 shares of $25.00 par value new Series ‘B’ first preferred stock and 75 cents in cash for each share of old second preferred stock outstanding.”
The plan, introduced in evidence, mentioned nothing about any optional right to receive dividends without exchange of the stock. Upon acceptance of the plan, the corporation was bound by its terms, as were all its stockholders. It was the acceptance of the plan that controlled the rights of all concerned, and the fact that certain of the stocks were afterward issued as dividends at different times, does not work a change in rights that had previously accrued. They were bound by the stock changes agreed upon, and the corporation was bound to issue such stock when the plan became effective.
In its argument, the Government says that a stockholder had the right to accept two shares of $25 par value, preferred stock, in satisfaction of accrued dividends of $50, — and that this was not conditioned on his assent to the plan of recapitalization. The inference to be drawn is that a stockholder was entitled to this method of satisfaction of accrued dividends, and was not required- to exchange his shares of old stock for the new stock provided for in the recapitalization plan. Therefore, it is contended that the issuance of the stock for accrued dividends was an entirely separate transaction from the exchange of old stock for new stock — and that the stock received for the accrued dividends was, therefore, taxable as a stock dividend constituting income.
To the foregoing, the answer is that the exchange of stock for accrued dividends resulted from the plan of recapitalization, and not merely from a declaration of a stock dividend therefor. Such declaration was provided for in the plan, which outlined this method. A stockholder did not have the option to retain his old stock, and, at the same time, secure shares of new stock for accrued dividends — because, according to the plan which was adopted and binding on all stockholders, it was provided that the old stock be exchanged for the new, whether the stockholder afterward assented or not. Were we to accept the Government’s contention that issuance of new stock in satisfaction of accrued dividends, was not conditioned upon a stockholder’s exchanging his old stock for new— which is expressly contrary to the terms of the plan submitted and adopted by the stockholders — nevertheless, it would be necessary to conclude that every stockholder receiving the so-called “stock dividends” was one who was obliged by the plan of recapitalization to exchange his former holdings for the new stock. He had no option, after the plan was adopted, to dissent and retain his old stock. The transaction, as to accrued dividends, was inextricably bound to the exchange of stock, and both arose simultaneously from the plan of recapitalization and its adoption.
The remaining question of taxability of dividends is, in this case, closely related to that which has already been determined. However, it may be said that stock dividends are taxable when they constitute income within the meaning of the 16th Amendment. § 115(f) (1) 26 U.S.C.A. Int.Rev.Code. The difficulty in a given case is to ascertain whether they really are income. In Koshland v. Helvering, 298 U.S. 441, 56 S.Ct. 767, 769, 80 L.Ed. 1268, 105 A.L.R. 756, there appears a suggestion that in the payment of dividends of stock, there is no receipt of income where the new certificate, plus the old, represent “the same proportionate interest in the net assets of the corporation as did the old.” See Mertens’ Law of Federal Income Taxation, Sec. 9.107.
In the case before us, the proportionate representation in the assets, between the former First Preferred and Second Preferred stockholders — constituting the only preferred stock — was the same after the recapitalization as before. The exchange of 7% debenture bonds of $100 face value, for 7% First Preferred stock of $100 par value, resulted in no substantial change of interest — as far as the former Second Preferred stockholders were concerned, — for it is conceded that the four shares of Series B First Preferred, which -were exchanged for the old Second Preferred, were not taxable. The relationship between the old First Preferred and Second Preferred stockholders as to priorities, was maintained by virtue of the issuance of the new debenture bonds for the old First Preferred stock. Whatever slight alterations in interest payment provisions resulted, were inconsequential. See Commissioner of Internal Revenue v. Neustadt’s Trust, 2 Cir., 131 F.2d 528. The fact that preferred stock was issued to a preferred stockholder to cover dividends in arrears on the old preferred stock, did not thereby give the stockholder an altered proportionate interest, and was too unsubstantial a difference in the form and nature of the securities exchanged, to result in receipt of income under the 16th Amendment. Skenandoa Rayon Corp. v. Commissioner of Internal Revenue, supra; Knapp Monarch Co. v. Commissioner of Internal Revenue, supra. From the foregoing it is our conclusion that the transaction in question was not taxable.
The decision of the Board of Tax Appeals (now the Tax Court of the United States) is reversed and the case remanded for proceedings not inconsistent with this opinion.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Mike AUSTFORD, Appellant, v. Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Appellee.
Nos. 16665, 16666.
United States Court of Appeals Eighth Circuit.
June 29, 1961.
Mart R. Vogel, Fargo, N. D., made argument for the appellant; Philip B. Vogel, Fargo, N. D., was on the brief for appellant.
Beate Bloch, Atty., U. S. Dept, of Labor, Washington, D. C., made argument for appellee. Charles Donahue, Solicitor of Labor, and Bessie Margolin, Asst. Solicitor of Labor, Washington, D. C., and Harper Barnes, Regional Atty., Dept, of Labor, Kansas City, Mo., were with Beate Bloch, Washington, D. C., on the brief.
Before JOHNSEN, Chief Judge, and WOODROUGH and MATTHES, Circuit Judges.
WOODROUGH, Circuit Judge.
These two actions, which were consolidated for trial, were brought by the Secretary of Labor under the Fair Labor Standards Act of 1938, as amended. (29 U.S.C.A. § 201 et seq.) No. 16,665 was under Section 17 of the Act to enjoin defendant employer from violating the Act’s overtime requirements. No. 16,666 was under Section 16(c) of the Act to recover unpaid wages for overtime pursuant to the written requests of appellant’s employees, Don A. Shambaugh, Keith G. Shambaugh and Richard Shambaugh.
There was evidence that appellant, Mike Austford, operates a road construction business from his home in Pembina County, North Dakota, employing between six and nine employees as gravel truck drivers, caterpillar tractor operators, sand and gravel pit operators, and in machine maintenance and shop repair. Appellant and his employees worked on township, county and, in, some instances, state roads, located in the county. These roads included North Dakota Highway No. 32 which runs in a north-south direction from the Canadian border to the South Dakota State line; Pembina County Highway No. 1 which joins State Highway No. 18 that also runs the length of the state; Pembina County Highway No. 3 which runs east-west between State Highway Nos. 18 and 32; and Pembina County Highway No. ,55 which connects State Highway No. 18 with State Highway No. 32 and with United States Highway No. 81, the latter extending from the Canadian border to the city of Laredo on the Mexican border.
The map of Pembina County shows that all of the roads in the county, including the other roads worked on by appellant’s employees, formed a network, in which each individual road is connected, either directly or indirectly through other roads, to one or more of these highways. The employees dump the gravel on the roads with a dump truck, and it is then bladed either by the county or by the employees. Appellant’s work is performed primarily on dirt and graveled roads, although some of the roads were later paved with a hard surface. Not only are the roads worked on by appellant’s employees inter-connected with other roads joining the interstate highway system, but the undisputed evidence shows that the particular township, county and state roads here involved were, and are, used for the movement of goods in interstate commerce, as follows:
1. By the United States Post Office Department in the delivery of mail over roads worked on by appellant in Pembina County from points outside the State of North Dakota;
2. By the interstate carriers in the delivery of commodities in interstate commerce evidenced by testimony of the owner of a film delivery service, who delivered film from the terminal in South Dakota to movie theaters in Pembina County, and a carrier who hauled interstate freight over some of the roads worked on by appellant, both of whom were licensed as interstate carriers by the Intel-state Commerce Commission;
3. By area farmers to transport agricultural products from farm to shipping point, following which most of the products were shipped to points outside of North Dakota based upon testimony of an associate agricultural economist with the North Dakota Experimental Station in Fargo, who testified that substantially all of the wheat, rye, flax and potatoes raised in Pembina County are marketed outside the State of North Dakota, grains generally being carried by truck from the farm to a local elevator for cleaning or treatment, prior to shipment outside the state, and potatoes being delivered by truck by the farmer to a potato warehouse, where they are cleaned and then shipped outside the state. The manager of the Agricultural Stabilization and Conservation Office in Pembina County testified that the sugar beets harvested in the county are hauled by the farmers to four loading stations, from which the railroads transport them to the sugar refineries located in Minnesota and surrounding states.
The three employee-claimants in case No. 16,666 also testified about the road work they performed while working for appellant in 1957 and 1958. Frank Gerlach, a Wage-Hour investigator, then presented computations, which were not disputed, about the amount which these employees would have received if they had been compensated in accordance with the Act’s requirements. Appellant testified that he had begun paying his employees one and one-half times the base pay for work in excess of forty hours per week in the spring of 1959. The Wage-Hour investigator testified that at the conclusion of his investigation toward the latter part of January, 1959, appellant stated that he would comply with the Act in the future, but in a subsequent discussion, appellant “was indefinite as to whether or not he would comply” and that “on advice of an attorney he apparently had changed his mind.”
On the basis of its findings of fact the trial court concluded that the roads worked on by appellant and his employees were instrumentalities of interstate commerce, and that the employees were therefore “engaged in commerce” under the Act. Accordingly, the court issued an injunction in No. 16,665 and having concluded that the “issue of law” in the case was “settled finally by the courts,” awarded judgment in No. 16,666 for unpaid overtime compensation found due the three employee-claimants.
1.
On the first contention attacking the Act’s coverage of repair and maintenance of the county and township dirt and gravel roads wholly within Pembina County, we think the district court’s ruling was in conformity with the decision of this Court in Mitchell v. Brown, 8 Cir., 224 F.2d 359, certiorari denied 350 U.S. 875, 76 S.Ct. 119, 100 L.Ed. 773. In that case we upheld the Act’s coverage of employees of a professional or consulting engineer engaged in the preparation of plans and specifications and providing inspection service for projects which included the paving of streets in certain towns in Iowa. It was obvious that the streets in that case primarily served intrastate purposes, but they carried persons and goods that were passing between states and we recognized them to be instrumentalities of interstate commerce. In the present case, the roads appellant and his employees worked on served the same purposes and we think they likewise were such instrumentalities.
In Mitchell v. Brown, supra, we cited and relied upon Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S.Ct. 494, 497, 87 L.Ed. 656, which establishes that the Act covers employees engaged in the operation, maintenance or repair of “[vjehicular roads and bridges * * * used by persons and goods passing between the various States * * * are instrumentalities of interstate commerce.” The Supreme Court also stated quoting Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460, “It is clear that the purpose of the Act was to extend federal control in this field throughout the farthest reaches of the channels of interstate commerce.” And it is not material that the roads are not themselves interstate highways but are feeders or extensions within the reaches of the main channels.
The Overstreet case involved a privately owned and operated toll road and bridge located wholly within the bounds of Duval County, Florida, and was used primarily for local traffic since it led only to a village with a population of approximately one hundred citizens. The district court had denied coverage of the employees engaged in its operations and maintenance, because of the view expressed in Covington & Cincinnati Bridge Co. v. Com. of Kentucky, 154 U.S. 204, 14 S.Ct. 1087, 38 L.Ed. 962, that the business of operating a toll bridge over which interstate and foreign commerce traveled was not immune from state taxation as interstate business. The Supreme Court reversed the judgment and after remand, the Court of Appeals, in affirming the judgment entered for the employees, pointed out that the Supreme Court’s coverage ruling was “based upon the fact of interstate use rather than upon the extent of such use” and held it determinative that the toll road was “an instrumentality * * * over which goods and persons in interstate and intrastate movements alike are being transported” and is “open and available at all times for interstate use.” North Shore Corp. v. Barnett, 5 Cir., 143 F.2d 172, 174. This characterization equally describes the roads on which appellant’s employees worked.
Other courts have consistently found Overstreet v. North Shore Corp., supra, decisive of the Act’s coverage of repair and maintenance work on county and rural roads and reconstruction of existing interstate facilities. In Emulsified Asphalt Products Company v. Mitchell, 6 Cir., 222 F.2d 913, 914, upholding the Act’s coverage of employees of an asphalt producer supplying material for use on city, town and county streets and roads, rejected the employer’s argument that roads built primarily for local traffic were not instrumentalities of commerce, since the Supreme Court had held, in Over-street, that “if vehicular roads and bridges ‘are used by persons and goods passing between the various States, they are instrumentalities of interstate commerce.’ ” Similarly, in Mitchell v. Raines, 5 Cir., 238 F.2d 186, 187, the court held that evidence showing that roads “were regularly used in the transmission of United States postal matter and for the transportation of goods to and from points in Georgia and other states [positively established] [t]heir character as direct instrumentalities of interstate commerce * * In Walling v. McCrady Const. Co., 3 Cir., 156 F.2d 932, certiorari denied 329 U.S. 785, 67 S.Ct. 298, 91 L.Ed. 673, the court held the Act applicable to employees engaged in the maintenance, repair and reconstruction of county roads and streets as various interstate instrumentalities, including a city street only twelve blocks long, used primarily for local traffic which did not even bear designation as state highways and relocation of a portion of a county road.
The most recent decision, Quilichini v. Kelley, D.C., 176 F.Supp. 889, 891, held there was coverage under the Act for employees engaged in the new construction of sections of rural secondary roads in Puerto Rico. The court upheld coverage although it found, “[t]he roads involved are not the super-expressway type of highway * * *. Indeed, not only are they of a most secondary class, one of them, Road No. 157, is not completed in one section, and in the other section comes to a dead end. Not even the ubiquitous United States mail uses it as a route. Only raw coffee beans and truck farming crops go over it. No industrial establishments grace its side." In Compania De Ingenieros y Contratistas, Inc. v. Goldberg, 1 Cir., 289 F.2d 78, 80, the court recites the following facts as affording adequate support for the court’s holding that the employees constructing these roads are covered by the Act:
“[E]ach of the roads involved in these two cases was through areas producing at least some agricultural products which were transported, sometime after processing, in interstate commerce. The transportation of such products from areas alongside and near the roads * * * was generally over other roads which connect or would connect with the roads here involved. * * * ‘[S]aidroads * * * [were] joined to and formed a part of the road and highway system of the Commonwealth of Puerto Rico and * * over those roads to which said roads * * [were] joined, there was such [interstate] trade, commerce, transportation, transmission and communication.’ ”
Among the many other decisions applying the Overstreet principles in varying fact situations comparable to the present one, we consider the following to be pertinent: Crook v. Bryant, 4 Cir., 265 F.2d 541, 543, holding that the West Virginia Turnpike, although “a limited access toll road * * * used by vehicles traveling interstate, not by necessity but for convenience only, * * * [nevertheless] is a connecting link of the system of interstate highways and thus serves as an instrumentality of interstate commerce”; Walling v. Craig, D.C., 53 F.Supp. 479, 430, holding the Act applicable although “each section of public road or highway repaired, maintained or reconstructed by defendants and their employees * * * lies wholly within a single State but each of said sections was a part of a network of roads and highways regularly traversed by vehicles operated by common and contract carriers and private persons for the transportation of persons and property from one State to another * * * ”; Mitchell v. L. Antonsanti, Inc., 14 WH Cases 398, 38 L.C. (CCH) para. 65,922 (D.P.R.1959, not officially reported), where two city streets within the municipality of San Juan were held to be instrumentalities of interstate commerce; and Mitchell v. Stewart Brothers Construction Co., D.C., 184 F.Supp. 886, 889, where the court recognized that, “[c] onsidering the integrated road system and great mobility of motor vehicles of today, it would be difficult to find a road which is well-traveled at all, that would not be deemed an instrumentality of interstate commerce.”
We think the authorities support the trial court’s conclusion that the roads here involved, in view of their proven use for the movement of persons and commodities “passing between the various States,” are instrumentalities of interstate commerce, so that appellant’s employees, engaged in their maintenance and repair, are “engaged in commerce” [187 F.Supp. 920] within the coverage of the Fair Labor Standards Act. Mitchell v. C. W. Vollmer and Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196; J. F. Fitzgerald Construction Co. v. Pedersen, 324 U.S. 720, 65 S.Ct. 892, 89 L.Ed. 1316; and McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 87 L.Ed. 1538.
2.
Section 16(c) limits the Secretary's authority to bring suit on behalf of an employee for the recovery of unpaid wages to cases in which the issues of law have been “settled finally by the courts.” The two appellate courts which have had occasion' to discuss this proviso have pointed out that an “extreme and unreasonable” insistence upon “pre-existing judicial precedents squarely in point” would “virtually nullify the salutary provision for the recovery of unpaid compensation without expense to the claimant.”
The differences between the situation in the present cases and the cases in which the meaning and scope of the Act have been determined are differences between a paved road and a graveled road or between a township road and a private toll road or a town street, all of which carry person and goods passing from one state or county to another state in interstate commerce and present no difference in legal principle. The differences are not legally significant since they were merely incidental factual variations such as obtained between any two cases however alike as to the fundamental principle which controls their disposition.
In Mitchell v. Emala & Associates, Inc., 4 Cir., 274 F.2d 781, the court held that the difference between fill dirt and other man made material used in road construction did not bring into play the proviso of Section 16(c) of the Fair Labor Standards Act. The issues of law in the present cases appear to us to have been “settled finally” if not conclusively, by Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656, and at least more than five years ago by this Court in Mitchell v. Brown, 8 Cir., 244 F.2d 359, subject only to their application to ever varying factual situations.
3.
Appellant asks this Court to reverse the trial court’s issuance of an injunction as an abuse of discretion, because defendant has come into compliance with the Act. However, appellant concedes that he has complied with the Act under the pressure of administrative investigations “and because he had to compete for employees in Pembina County’s labor market” and not “because he felt he was under the Fair Labor Standards Act.” Under these circumstances, the grant of injunctive relief was clearly an appropriate exercise of the discretion vested in the trial court. As this Court held, in Chambers Construction Co., v. Mitchell, 8 Cir., 233 F.2d 717, 725, “[wjhere the violation established is likely to resume, the court should grant an injunction.” In Compania De Ingenieros y Contratistas, Inc. v. Goldberg, 1 Cir., 289 F.2d 78, 81, the court, under circumstances similar to those presented here, affirmed the trial court’s grant of injunctive relief “[i]n view of the admitted intent of defendants to continue in the business of highway construction in the future and of the possibility on similar future construction of asserting the same argument that the construction is not covered by the Act * *
In Goldberg v. Kickapoo Prairie Broadcasting Co. et al., 8 Cir., 288 F.2d 778, 783, this Court held that it was error for the trial court to deny injunctive relief, observing that “injunctive relief is not punitive but remedial — if defendants ‘comply with the law they lose nothing by the injunction.’ ” It was clearly a sound exercise of the court’s discretion to grant such remedial injunctive relief here, where appellant, having come into temporary compliance only because of outside pressures, still refuses to acknowledge the long line of judicial authorities which have established the Act’s applicability to his operations.
4.
Appellant has also argued that the findings and judgment of the court are in conflict with the Tenth Amendment and Article 1 of Section VIII of the Constitution of the United States. We are of the opinion after study of United States v. Darby, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609, and the same cases cited on this point for appellant that the claim of unconstitutionality is without merit. J. F. Fitzgerald Construction Co. v. Pedersen, 324 U.S. 720, 65 S.Ct. 892, 89 L.Ed. 1316; Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682; A. B. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638; Covington & Cincinnati Bridge Co. v. Commonwealth of Kentucky, 154 U.S. 204, 14 S.Ct. 1087, 38 L.Ed. 962; Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23.
We conclude that the judgments appealed from are without error.
Affirmed.
. Arthur J. Goldberg was substituted as appellee in tlie place of James P. Mitch- . ell, former Secretary of Labor, by order of this Court, dated January 30, 1961.
. Section 16(c) provides: “* * * When a 'written request is filed by any employee with the Secretary of Labor claiming unpaid minimum wages or unpaid overtime compensation under section 206 or section 207 of this title, the Secretary of Labor may bring an action in any court of competent jurisdiction to recover the amount of such claim: Provided, That this authority to sue shall not be used by the Secretary of Labor in any case involving an issue of law which has not been settled finally by the courts, and in any such case no court shall have jurisdiction over such action or proceeding initiated or brought by the Secretary of Labor if it does involve any issue of law not so finally settled.”
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_const1
|
106
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Arthur H. SMITH, Petitioner-Appellee, v. Arnold R. JAGO, Supt., Respondent-Appellant.
No. 88-3775.
United States Court of Appeals, Sixth Circuit.
Argued March 28, 1989.
Decided Oct. 20, 1989.
Rehearing and Rehearing En Banc Denied Jan. 4, 1990.
George H. Lancaster, Jr. (argued), Ohio Public Defender Com’n and Arthur H. Smith, Columbus, Ohio, for Arthur H. Smith, petitioner-appellee.
John J. Gideon (argued), Office of the Atty. Gen. of Ohio, Columbus, Ohio, for Arnold R. Jago, respondent-appellant.
Before: ENGEL, Senior Circuit Judge; BOGGS, Circuit Judge; and COHN, District Judge.
The Honorable Albert J. Engel became Senior Circuit Judge on October 1, 1989.
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation.
ENGEL, Senior Circuit Judge.
Respondent Arnold Jago, Superintendent of the London Correctional Institution, appeals from a judgment of the United States District Court for the Southern District of Ohio granting Petitioner Arthur Smith’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and from the denial of a motion to alter or amend that judgment pursuant to Fed.R.Civ.P. 59(e). The principal issue on appeal is the extent to which the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), apply where it is alleged that deficient conduct by trial counsel adversely affected the outcome of the defendant’s direct appeal as of right. Also involved is the deference to be accorded a state appellate court’s determination of a mixed question of law and fact made by the appellate court while reviewing the denial of a petition for post-conviction relief after a full evidentiary hearing in the state trial court.
I.
At approximately 10:00 p.m. on September 6, 1980, a robbery occurred at El Ran-cho Grande Restaurant in Wooster, Ohio. At least three men dressed in army fatigues and wearing ski masks committed the crime. The men, brandishing an assortment of weapons, ordered the employees and patrons to the floor and took their watches, wallets, jewelry and cash. The approximately thirty victims were then placed in the restrooms, where they remained until after the robbers left. Police officers arrived at the scene and interviewed the witnesses, but were unable to obtain any positive evidence as to the identities of the men who had committed the robbery. Physical evidence found by the police at the scene included bullet fragments fired by one of the men involved and a spent shell casing.
Two weeks later, on September 20, 1980, City of Upper Arlington police involved in an investigation of a “man-with-a-gun” report were called to the Scioto Trails, a local restaurant. In the parking lot of that establishment they found and impounded an automobile, later determined to be registered in the name of Gary Burress, one of Petitioner Smith’s codefendants. Inside the car, the police found, among other things, an AR-15 automatic rifle, a wallet containing Smith’s driver’s license, a watch later identified as belonging to Smith, a watch later identified as being the property of one of the El Rancho Grande robbery victims, and miscellaneous clothing.
That same night, Ronald Bondurant, Smith’s other codefendant, was stopped not far from the Scioto Trails by a police officer. The officer found in Bondurant’s possession a.45 caliber automatic weapon, a gas mask, and a flashlight. Examination of Bondurant’s papers disclosed a receipt issued to him for the purchase of an AR-15 rifle and ammunition. It was later learned that the receipt was for the weapon found in Burress’ car, which tests indicated had fired the bullet found at the El Rancho Grande. Another police officer picked up Smith in Upper Arlington that same night. Smith allegedly explained his presence there by telling the officer that three men had kidnapped him in Columbus, had taken him to Upper Arlington, and had dumped him in the street after taking his watch and wallet. Smith, who was held briefly on an outstanding warrant for a Grand Theft which occurred in 1975, was later released.
Smith and his two codefendants were subsequently arrested and charged with aggravated robbery. Ohio Rev.Code Ann. § 2911.01. All three were incarcerated at the Wayne County Jail. Shortly before Smith and his codefendants were tried before a jury, Smith’s trial counsel learned of the existence of a prosecution witness, named Gerry Wayt, who claimed that Smith’s two codefendants had told him that they and two other men, neither of whom was Smith, had committed the El Rancho Grande robbery. Wayt, who has a lengthy criminal record, had been confined with Smith’s codefendants while they were awaiting trial.
After the trial began on April 6, 1981, but before any testimony was heard, Smith’s trial counsel learned that the prosecution had subsequently decided not to call Wayt. Smith’s trial counsel then orally renewed a previously denied motion to sever Smith’s trial from that of his codefend-ants. Claiming that he intended to use the subsequently discovered statement of Wayt, Smith's trial counsel argued that because Smith’s defense would inculpate his codefendants, severance was required. The trial court denied the motion.
Smith’s trial counsel later attempted to have Wayt’s testimony introduced under an exception to the “hearsay rule.” At an in-chambers conference, Smith’s trial counsel explained his strategy to the trial judge. By calling Smith’s codefendants to the stand and inducing each to invoke his Fifth Amendment privilege against self-incrimination, Smith’s trial counsel would have them declared “unavailable.” This, it was claimed, would allow Smith’s counsel to move to admit Wayt’s testimony under the admission against interest exception to the hearsay rule. Ohio R.Evid. 804(B)(3). Fearing a mistrial, the trial court instructed Smith’s trial counsel not to call his code-fendants to the stand, and Smith’s trial counsel complied with the trial court’s instructions. No effort was made to preserve the proffered testimony for review on appeal.
In addition to the facts set out above, the evidence at trial revealed that on October 6, 1980, many or all of the witnesses who were at the El Rancho Grande on the night of the robbery participated in a photographic lineup, but were unable to make a positive identification of any of the men involved. At trial, one witness was able, however, to identify Smith with “reasonable certainty” as one of those involved in the El Rancho Grande robbery. Two other witnesses thought Smith was involved or that he looked familiar. A significant number of the other witnesses, however, were unable to make any identification at all.
Confronted with this evidence, Smith presented an alibi defense. Smith and his witnesses testified that on the day of the robbery, he was helping members of his fiance's family move into a new home. In support of this claim, Smith introduced into evidence a receipt identifying himself as the individual who rented a U-Haul truck on the day of the robbery. The receipt indicated that the truck was rented by Smith at 2:00 p.m. and returned at 6:00 p.m. The U-Haul employee who was working at the rental location at issue on the date in question testified that while he could not identify Smith at trial, he would have required Smith, in accordance with company procedure, to show his driver’s license as identification. Smith and his co-defendants were each convicted of one count of aggravated robbery, and Smith was sentenced to a term of seven to twenty-five years imprisonment.
Smith challenged his conviction on direct appeal, claiming inter alia, that the trial court erred in denying his motion to sever. The Ohio Court of Appeals affirmed the conviction, finding that any error committed by the trial court was harmless because Smith’s trial counsel had failed to preserve Wayt’s testimony properly for appeal. The Ohio Supreme Court dismissed Smith’s motion for leave to appeal.
Smith then sought post-conviction relief in state court, claiming that he had been denied effective assistance of counsel. In his petition, Smith argued, through new counsel, that his trial counsel's failure to call Wayt as a witness and to preserve the proffered testimony in the record prejudiced the result at trial and on appeal. The trial judge conducted an evidentiary hearing at which Smith’s trial counsel testified. By stipulation, the parties introduced a statement of Wayt’s proffered testimony. The government also introduced the testimony of one Gary Dees, who stated that Smith and his codefendants had admitted committing the robbery. The government claimed that, despite the fact that Dees had a criminal record, it would have called him to testify had Wayt been allowed to testify at Smith’s trial. The trial court found that Smith’s counsel had not been ineffective and that Smith had not been prejudiced by his counsel’s actions. The Ohio Court of Appeals affirmed, agreeing that no prejudice had resulted. The Ohio Supreme Court again denied leave to appeal.
Smith then filed a pro se petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio. In his petition, Smith alleged that he was denied effective assistance of counsel because his trial counsel failed “to adduce evidence known to be exculpatory to petitioner.” The district court granted Smith’s petition, ordering that a writ of habeas corpus issue unless the State of Ohio commenced a retrial of the petitioner within 30 days. In its opinion, filed on March 10, 1988 (“March Opinion”), the district court found that Smith was denied effective assistance of counsel because his trial counsel had failed to preserve the proffered testimony on the record for appeal, and thus prejudiced Smith in his direct appeal. Respondent Jago then moved to alter or amend the judgment of the district court, claiming that the district court erred in finding that Smith had been prejudiced. The district court denied the motion in an opinion and order filed on July 25, 1985 (“July Opinion”).
Repeating claims raised in his motion to alter or amend, Respondent Jago now appeals from both of the district court’s orders, claiming that the court erred in: (1) finding affirmative proof or prejudice as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (2) failing to defer to the findings of the Ohio Court of Appeals, made during post-conviction proceedings, that Smith was not prejudiced by his counsel’s deficient conduct. Smith has been represented by an attorney from the Ohio Public Defender Commission on appeal.
II.
In Strickland v. Washington, supra, the Supreme Court developed a two-component analysis for determining whether a convicted defendant’s representation at trial is so defective that it requires reversal of the defendant’s conviction:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. at 687, 104 S.Ct. at 2064. See Meeks v. Bergen, 749 F.2d 322, 326-27 (6th Cir.1984). See also Beasley v. United States, 491 F.2d 687 (6th Cir.1974). In Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), our court adopted the same analysis for cases, such as the one now before us, where it is alleged that trial counsel’s deficient conduct prejudiced the outcome of the defendant’s first appeal as of right. In that case, petitioner’s trial counsel failed to move for a directed verdict at the close of all the evidence, as required by state law. As a result, the state appellate court refused to consider, on direct appeal, petitioner’s claim that there was insufficient evidence to support his conviction. 785 F.2d at 137. After exhausting his remedies in state court, petitioner sought federal habe-as corpus relief from his murder conviction on two grounds: (1) that there was insufficient evidence to support the conviction, and (2) that he had been denied effective assistance of counsel. Applying Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the majority of our court first found that the “insufficient evidence” claim had been properly raised for review in the district court, but that it was without merit. Turning to the ineffective assistance of counsel claim, our court relied on Strickland and concluded:
Given our conclusion that there was sufficient evidence to support Maupin’s conviction we conclude that counsel’s alleged error did not result in such prejudice as to meet the second part of the Strickland standard.
785 F.2d at 140. Thus, our court essentially held that the error by trial counsel did not warrant setting aside the judgment of the criminal proceeding because the error had no effect on the judgment of conviction.
In Maupin, that analysis required our court to determine, based on the trial record, whether there was sufficient evidence for a rational trier of fact “to find proof of guilt beyond a reasonable doubt.” 785 F.2d at 140 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In the case now before us, such an approach admittedly requires the somewhat more speculative determination of the probable result of the trial had the motion to sever been granted and, as a result, Wayt’s testimony had been introduced. In essence we assume that, had Smith’s counsel not failed to preserve Wayt’s testimony, a new trial would have been granted, but then consider whether the outcome of the severed trial would have been different. We believe that, where the record permits it, such an approach is consistent with the pronouncement in Strickland that “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” 466 U.S. at 691, 104 S.Ct. at 2066.
In making its finding of ineffective assistance of counsel in this case, the district court first found that Smith’s trial counsel’s failure to preserve for the record his discussion with the trial judge and to proffer the anticipated exculpatory testimony was deficient conduct within the meaning of Strickland. The district court then determined that the deficient representation at trial prejudiced the outcome of Smith’s direct appeal. Respondent Jago challenges only the second determination; accordingly, we limit our review to that issue. Cf. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 (in rejecting a claim of ineffective assistance of counsel it is sufficient to find that a petitioner has failed to meet either the deficiency or the prejudice component of the Court’s two-part analysis). Because we believe that, on the record of this ease, the district court applied an improper standard of prejudice by looking only to the outcome of Smith’s direct appeal and not to the outcome of the entire criminal proceeding, we must, at the very least, vacate and remand the cause for further consideration in light of the proper standard. Since we are satisfied, however, that no further development of the record is necessary, we believe that further proceedings below are not required.
III.
Before applying the proper standard to this case, we note that there is another troubling reason why the district court's judgment must be vacated. Even if we believed that the district court applied the proper standard, we would have to find that the court erred because it failed to give the findings of fact, made by the state appellate court during Smith's post-conviction proceedings, the deference they are due under the statute which governs federal habeas review of state convictions. 28 U.S.C. § 2254(d).
Following his conviction, Smith filed a Petition for Relief after Judgment in the Court of Common Pleas of Wayne County, Ohio in which he made the following claim:
Petitioner asserts that the judgment entered against him is voidable under the guarantees of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution affording him the right to effective assistance of counsel. Petitioner's trial counsel who also represented him on appeal, failed to subpoena an essential witness to testify on his behalf.
In a memorandum in support of the petition, Smith argued, through new counsel, that the failure to “adduce the Wayt testimony” was deficient representation, explaining that had his trial counsel done so, the testimony either would have been admitted, or had the court not permitted the testimony, trial counsel could have proffered the testimony and properly made a record for appeal. Smith also claimed that he was prejudiced by his trial counsel’s actions, both because, if admitted, the evidence would have raised a reasonable doubt as to Smith’s guilt and because, if excluded, a timely proffer of the evidence would have made a record for appeal.
As noted above, an evidentiary hearing was held, and after considering the exculpatory testimony of Wayt, the inculpatory statement by Dees, and other evidence obtained during a hearing, the Court of Common Pleas rejected Smith’s petition. In rejecting the claim, the trial court cited Strickland, and found that the conduct of Smith’s trial counsel was neither deficient nor prejudicial.
Smith appealed this decision, claiming that it was not supported by the record. Considering Smith’s claim in light of Strickland, the Ohio Court of Appeals made the following findings:
Even assuming that counsel had a duty to call the witnesses in question even though it might have angered the trial judge, this tactic would have been questionable at best. Wayt had a lengthy criminal record which would be brought before the jury. The statements of [Smith’s codefendants] that Smith was a member of the gang would be devastating to Smith’s defense. Finally Dees [sic] testimony that Smith was present at the robbery would have been brought before the jury. All of which would have served to divert the jury’s attention from what counsel believed to be a strong alibi defense.
Because the jury would have before them Wayt’s testimony that Smith was a member of the gang; Dees’ testimony that Smith was with the gang on the night of the robbery; physical evidence linking Smith to [his codefendants] and the robberies; and various eyewitness testimony, it is probable that the result of Smith’s trial would not have changed.
Decision and Journal Entry of the Court of Appeals, dated December 25, 1985, Joint App. at 249.
Despite the Ohio Court of Appeals’ finding that Smith was not prejudiced, and despite the fact that both courts were applying Strickland to the same record, the district court found that Smith was prejudiced by his trial counsel’s error. In its March Opinion the district court made its finding of prejudice without any reference to the findings made by the Ohio Court of Appeals. The district court’s entire analysis of the prejudice component of Strickland was as follows:
Having established the first component of his constitutional claim, petitioner must now prove that he was prejudiced by his trial counsel’s deficient performance.... It is clear to this Court that, but for his trial counsel’s failure to preserve the record, “there is a reasonable probability sufficient to undermine confidence in the outcome” of his appeal. The state court of appeals acknowledged that the denial of petitioner’s motion to sever by the trial court was erroneous, but nevertheless affirmed petitioner’s conviction on the ground that such error, in light of the apparent failure to introduce the problematic hearsay statement into evidence, was harmless. The fact the trial counsel’s constitutional deficiency resulted in prejudice not at trial, but on appeal, does not undermine this otherwise valid constitutional claim.
March Opinion, Joint App. at 357 (citation omitted).
Not surprisingly, Jago filed a Motion to Alter or Amend the March Opinion, arguing that the district court’s opinion both ignored and was at odds with the Ohio Court of Appeals’ findings in violation of 28 U.S.C. § 2254(d). Moreover, Jago claimed that the Court of Appeals’ finding removed the predicate upon which the district court’s finding of prejudice was based. In its July Opinion, denying Jago’s motion to alter or amend, the district court considered the state appellate court’s findings, but declined to rely upon them:
[Respondent refers to the fact that the Ohio Court of Appeals subsequently reviewed the proposed exculpatory evidence during the course of petitioner’s appeal from the denial of his request for post-conviction relief, and concluded that the testimony would not have changed the outcome of petitioner’s criminal trial. It can therefore be assumed, argues respondent, that the Ohio Court of Appeals would have made the same credibility determination on direct appeal even absent trial counsel’s failure to preserve the record.
Respondent’s assumption, however, also assumes the propriety of the Court of Appeal’s credibility determination in connection with Wayt’s anticipated testimony.
More significantly, however, respondent’s contention also assumes that the state court of appeals’ standard of prejudice was the same on both the direct appeal and the appeal from the denial of post-conviction relief. It is not unreasonable to also assume that a court sitting on direct appeal could have found prejudice in the mere fact that, had the motion to sever been granted, the evidence— both for the defense and, possibly, for the prosecution — would have been different. In any event, respondent’s contention is in the final analysis, based upon speculation that neither the respondent nor this court can verify.
July Opinion, Joint App. at 376-77 (footnote omitted). In a footnote the district court added:
At a minimum, Wayt’s testimony would have been before the jury for the latter’s credibility determination. Moreover, it is altogether possible that petitioner’s code-fendants would by that time have been rendered available to testify on petitioner’s behalf at petitioner’s severed trial.
Id. at 377 n. 2.
There is no doubt that, in considering Smith’s petition for federal habeas relief, the district court could freely review the state court’s legal conclusion that Smith was not denied effective assistance of counsel at his trial. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. Moreover, because both the prejudice and performance components of the Strickland ineffectiveness inquiry are mixed questions of law and fact, the district court was free to review the legal conclusions drawn from the factual findings underlying each component. 466 U.S. at 698, 104 S.Ct. at 2070. Cf. Cain v. Smith, 686 F.2d 374, 379-80 (6th Cir.1982); Fowler v. Jago, 683 F.2d 983, 992 (6th Cir.1982) (mixed questions of law and fact not governed by 28 U.S.C. § 2254(d)). Yet, while the legal conclusions involved are freely reviewable, the credibility findings made by the Ohio Court of Appeals are findings of fact, Adams v. Jago, 703 F.2d 978, 980 (6th Cir.1983), subject to the severely restricted review of 28 U.S.C. § 2254(d).
Section 2254(d) in relevant part provides: 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 application 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....
28 U.S.C. § 2254(d). The statute places the burden on the petitioner to establish by “convincing evidence” that the state court factual determination is erroneous, unless one of eight specified circumstances exists:
(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 proceeding; 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....
28 U.S.C. § 2254(d). Moreover, a federal court granting the writ must state in its opinion the reason why it found that one of the first seven factors was present, or the reason why it concluded that the state court’s factual determination was not fairly supported by the record. See Sumner v. Mata, 449 U.S. 539, 551-52, 101 S.Ct. 764, 771-72, 66 L.Ed.2d 722 (1981); Nichols v. Perini, 818 F.2d 554, 557-58 (6th Cir.1987).
In this case, the district court failed to include in its opinion any explanation of the reasons behind its decision not to accord the state court’s factual findings the presumption of correctness. Indeed, the district court failed to address Jago’s section 2254(d) claim at all: the district court made no reference to section 2254(d) or to any of the eight circumstances listed therein. It appears to us that the court only addressed Smith’s claim that the post-conviction review undermined the “predicate” for the court’s finding of prejudice. Such a failure by the district court is an additional reason for us to vacate its opinion and to remand for further proceedings, see Mata, 449 U.S. at 552, 101 S.Ct. at 771, however, as noted above, because we are satisfied that no further development of the record is necessary, we find such a remand unnecessary in this case. Cf. Nichols v. Perini, 818 F.2d at 558.
IV.
After careful review of the record, we first note that we are satisfied that the state court’s findings of fact are “fairly supported by the record” and that none of the other seven circumstances listed in section 2254(d) is applicable in this case. Those findings are therefore entitled to a presumption of correctness, a presumption which we conclude has not been rebutted by convincing evidence showing that the factual determinations of the state court were erroneous.
Turning now to the substantive issue and applying the presumption of correctness to the factual determinations of the state courts, we must independently determine whether Smith has met his burden of showing prejudice within the meaning of Strickland. In that case, the Supreme Court provided us with some guidance regarding the application of the prejudice component of its analysis. Perhaps most importantly, the Court noted:
An error by counsel, even if professionally unreasonable does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense to constitute ineffective assistance under the Constitution.
Strickland, 466 U.S. at 691-92, 104 S.Ct. at 2066-67. Although the Court noted that in certain contexts prejudice is presumed, the remaining claims of ineffectiveness are subject to the “general requirement that the defendant affirmatively prove prejudice.” Id. at 692-93, 104 S.Ct. at 2067. The rationale behind this rule is that “the government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence.” Id. at 693, 104 S.Ct. at 2067. Finally, the Court set out the standard: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068.
Because the error found by the district court — the failure to preserve Wayt’s statement for appeal — did not affect the evidence heard by the jury at the original trial, but could only affect the outcome of a new trial after a successful appeal, this analysis can be viewed as operating on the' assumption that the Ohio Court of Appeals would have reversed the conviction on direct appeal. There is no doubt in our minds that the evidence presented at Smith’s trial was sufficient to support his conviction. While there was no positive eyewitness identification of Smith, the less certain identifications made by witnesses, when combined with the strong circumstantial evidence linking Smith to the crime, are sufficient to overcome any reasonable doubt as to his guilt. Moreover, once we adopt the factual findings of the Ohio Court of Appeals, we do not believe that Wayt’s testimony, in light of its dubious credibility and of the other testimony that would have been presented at a severed trial, would be sufficient to raise a reasonable doubt in the minds of the jurors. In reaching this conclusion, we recognize the importance of the credibility determinations involved in the prosecution’s case in chief and Smith’s alibi defense, but we remain unpersuaded that Smith has met his burden of affirmatively showing prejudice to the outcome of his trial.
Accordingly, the judgment of the district court is REVERSED, and the cause is REMANDED for dismissal of Smith’s petition for a writ of habeas corpus.
. Because we vacate the district court’s judgment on this basis, we need not reach Respondent Jago’s claim that the district court failed to require the defendant to affirmatively prove prejudice on appeal. We note, however, that while the Supreme Court has not yet reached the issue, see Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 833, 83 L.Ed.2d 821 (1985), our court has adopted Strickland as the basis for a similar standard for claims of effective assistance of appellate counsel. See Bowen v. Foltz, 763 F.2d 191 (6th Cir.1985). In Bowen, our court addressed the claim that a defendant’s counsel during an appeal as of right had failed to challenge an existing rule of criminal law that was subsequently modified by the state’s supreme court. In rejecting the claim of prejudice from the error as too speculative, our court restated the prejudice component of Strickland to require a showing of a reasonable probability that the result of the appeal would have been different. Bowen, 763 F.2d at 194. Accord Bell v. Lockhart, 795 F.2d 655, 657-58 (8th Cir.1986); Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1985); Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir.1985). Of course, the instant case does not involve a claim of ineffective assistance of appellate counsel.
. In his motion, and again on appeal, Jago argued: "[the district court] cannot find that trial counsel’s deficiency resulted in prejudice on appeal — that the court of appeals probably would have found that Smith’s defense was prejudiced by the absence of Wayt’s testimony — when, in fact, the court of appeals found exactly the opposite — that there was no prejudice.”
. Likewise, in reviewing the district court's findings we may not set aside its factual findings unless clearly erroneous, Fed.R.Civ.P. 52(a), but we are free to review the legal conclusions drawn from those facts. See Strickland, 466 U.S. at 698, 104 S.Ct. at 2070; Blackburn v. Foltz, 828 F.2d 1177, 1181 (6th Cir.1987).
. It is clear that review by a state appellate court of the trial record constitutes a "hearing" as is contemplated by 28 U.S.C. § 2254(d). Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 768, 66 L.Ed.2d 722 (1981); Nichols v. Perini, 818 F.2d 554, 557 n. 3 (6th Cir.1987).
. Smith argues that credibility findings made by a state appellate court, which did not have an opportunity to observe the demeanor of the witness, are not "fairly supported" by the record. While Smith raises a legitimate concern, we are not persuaded by his argument, which would, if accepted, essentially prohibit all appellate credibility determinations in these cases, which inevitably are made on a "paper record.” Moreover, to the extent that the concern raised by Smith can be seen as a reason for federal courts to freely redetermine credibility findings because they were made on an identical paper record, we reject such an argument as well, for the deference due the state court’s findings are based, in large part, in the notion of federalism. See Sumner v. Mata, 449 U.S. at 547, 101 S.Ct. at 769.
. We also believe that the presumption of correctness attaches to the factual findings made by the Court of Common Pleas during its review of Smith’s petition for post-conviction relief. Those findings were:
1. Witness Wayt made inculpatory and exculpatory statements all as stipulated as part of the evidence in support of Defendant’s Petition.
2. Jerry Dees, another witness, [sic] for the State but not called at the original trial made inculpatory statements regard [sic] all three Defendants and as testified at the hearing in opposition of Defendant’s Petition.
3. The State or Prosecutor was aware of both statements prior to the trial.
4. The then Counsel for Defendant was not aware of Jerry Dees [sic] statement but was aware of witness Wayt’s statement prior to trial.
5. The then Counsel for Defendant was of the belief that the testimony of witness Wayt would be helpful in establishing his alibi and the defense that he was not involved.
6. Counsel for Defendant made known to the Trial Court both before the trial and during the trial the implications and effect of such statements in a joint trial and strenuously argued for separate trials.
7. Counsel for Defendant having incurred the wrath of the Trial Court with the threat of a mistrial after the matter had been tried for some period of time determined to proceed without calling the witness Wayt, believing he had a strong case of alibi irrespective of Wayt's testimony.
8. The testimony of witness Wayt became more important when another witness at the scene of the crime identified the Defendant as one of those involved in the robbery which was contra to Defendant Smith’s alibi.
9. Counsel for Defendant while attempting to blunt this testimony with expert testimony (in other words to discredit the ability of the eyewitness to make the identification) which was proffered; nevertheless, did not call either of the other two Co-Defendants so as to be in a position to proffer the statement of witness Wayt nor to put on Wayt as a witness if same were proper.
10. Counsel for Defendant’s failure to call the Co-Defendants to testify or to in any manner proffer the statement or to subpoena witness Wayt to testify was not a part of Counsel’s trial tactics in the case.
11. Counsel for Defendant was of the opinion he had a strong alibi defense separate and apart from Wayt's statement.
12. It would be pure conjecture to speculate as to what effort, if any, Counsel for Defendant would have made to secure a separate trial or to secure the introduction of testimony from Wayt before the Jury had such Counsel likewise been aware of the damaging statements of potential witness Jerry Dees, taking into consideration their respective criminal history to wit that witness Wayt had spent a good portion of
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:
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sc_issue_8
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18
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
WEINBERGER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, et al. v. HYNSON, WESTCOTT & DUNNING, INC.
No. 72-394.
Argued April 17, 1973
Decided June 18, 1973
Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, BlackmuN, and Rehnquist, JJ., joined. Powell, J., filed an opinion concurring in the result as to Part I and joining in Part II of the Court’s opinion, post, p. 637. BreNNAN, J., took no part in the consideration or decision of the cases. Stewart, J., took no part in the decision of the cases.
Deputy Solicitor General Friedman and Andrew L. Frey argued the cause for petitioners in No. 72-394 and respondents in No. 72-414. With Mr. Frey on the briefs were Solicitor General Griswold, Assistant Attorney Gen eral Kauper, Deputy Solicitor General Wallace, Robert B. Nicholson, Howard E. Shapiro, and Peter Barton Hutt.
Edward Brown Williams argued the cause for petitioner in No. 72-414 and respondent in No. 72-394. With him on the briefs was Jan Edward Williams.
Together with No. 72-414, Hynson, Westcott & Dunning, Inc. v. Weinberger, Secretary of Health, Education, and Welfare, et al., also on certiorari to the same court.
Briefs of amici curiae in both eases were filed by Lloyd N. Cutler, Daniel Marcus, and William T. Lake for Pharmaceutical Manufacturers Assn.; by Bruce J. Terris, Joseph Onek, and Peter H. Schuck for American Public Health Assn, et al.; and by Thomas D. Finney, Jr., Thomas Richard Spradlin, and Daniel F. O’Keefe, Jr., for the Proprietary Assn. Briefs of amici curiae in No. 72-394 were filed by Alan H. Kaplan for E. R. Squibb & Sons, Inc., and by Robert L. Wald, Selma M. Levine, Joel E. Hoffman, Philip Elman, and Philip J. Franks for USV Pharmaceutical Corp.
Mr. Justice Douglas
delivered the opinion of the Court.
These cases, together with Weinberger v. Bentex Pharmaceuticals, Inc., post, p. 645, CIBA Corp. v. Weinberger, post, p. 640, and USV Pharmaceutical Corp. v. Weinberger, post, p. 655, all here on certiorari, raise a series of questions under the 1962 amendments to the Federal Food, Drug, and Cosmetic Act of 1938. 52 Stat. 1040. The 1938 Act, which established a system of premarketing clearance for drugs, prohibited the introduction into commerce of any “new drug” unless a new drug application (NDA) filed with the Food and Drug Administration (FDA) was effective with respect to that drug. § 505 (a), 52 Stat. 1052. Under the 1938 Act a “new drug” was one not generally recognized by qualified experts as safe for its intended use. §201 (p)(1). The Government could sue to enjoin violations, prosecute criminally, and seize and condemn the articles. §§ 301 (d), 302 (a), 303, 304. The Act established procedures for filing NDA’s, § 505 (b), and provided standards under which, after notice and hearing, FDA could refuse to allow an NDA to become effective, §§505 (c) and (d), or could suspend an NDA in effect on the basis of new evidence that the drug was unsafe. § 505 (e). Orders denying or suspending an NDA could be reviewed in a district court on the administrative record. § 505 (h).
The 1962 Act amended §201 (p)(l) of the 1938 Act to define a “new drug” as a drug not generally recognized among experts as effective as well as safe for its intended use. 21 U. S. C. § 321 (p)(1). A new drug, as now defined, still may not be marketed unless an NDA is in effect. FDA is now directed to refuse approval of an NDA and to withdraw any prior approval if “substantial evidence” that the drug is effective for its intended use is lacking. 21 U. S. C. §§ 355 (d) and (e). Thus, the basic clearance system, requiring FDA approval of an NDA before a “new drug” may be lawfully marketed, was continued, except that FDA now either must approve or disapprove an application within 180 days. 21 U. S. C. § 355 (c). (Under the 1938 Act an application automatically became effective if it was not disapproved.) Judicial review was transferred to the courts of appeals. 21 U. S. C. § 355 (h).
Since the Act as amended requires affirmative agency approval, all NDA’s “effective” prior to 1962 were deemed “approved” under the new definition, and manufacturers were given two years to develop substantial evidence of effectiveness, during which previously approved NDA’s could not be withdrawn by FDA for a drug’s lack of effectiveness. The 1962 amendments also contain a “grandfather” clause exempting from the effectiveness requirements any drug which on the day preceding enactment (1) was commercially used or sold in the United States, (2) was not a “new drug” as defined in the 1938 Act (it being generally recognized as safe), and (3) “was not covered by an effective application” for a new drug under the 1938 Act.
Between 1938 and 1962 FDA had permitted 9,457 NDA’s to become effective. Of these, some 4,000 were still on the market. In addition, there were thousands of drugs which manufacturers had marketed without applying to FDA for clearance. These drugs, known as “me-toos,” are similar to or identical with drugs with effective NDA’s and are marketed in reliance on the “pioneer” drug application approved by FDA. In some cases, a manufacturer obtained an advisory opinion letter from FDA that its product was generally recognized among experts as safe.
To aid in its task of fulfilling the statutory mandate to review all marketed drugs for their therapeutic efficacy, whether or not previously approved, FDA retained the National Academy of Sciences-National Research Council (NAS-NRC) to create expert panels to review by class the efficacy of each approved drug. Holders of NDA’s were invited to furnish the panels with the best available data to establish the effectiveness of their drugs. The panels reported to FDA; and on January 23, 1968, FDA announced its policy of applying the NAS-NRC efficacy findings to all drugs, including the related “me-too” drugs.
I
Respondent in No. 72-394, Hynson, Westcott & Dunning, Inc., had filed an application under the 1938 Act for a drug called Lutrexin, recommended by Hynson for use in the treatment of premature labor, threatened and habitual abortion, and dysmenorrhea. FDA informed Hynson that Hynson’s studies submitted with the application were not sufficiently well controlled to justify the claims of effectiveness and urged Hynson not to represent the drug as useful for threatened and habitual abortion. But FDA allowed the application to become effective, since the 1938 Act permitted evaluation of a new drug solely on the grounds of its safety. Before the 1962 amendments Hynson filed an application for a related drug which FDA, again on the basis of the test of safety, allowed to become effective. When the 1962 amendments became effective and NAS-NRC undertook to appraise the efficacy of drugs theretofore approved as safe, Hynson submitted a list of literature references, a copy of an unpublished study, and a representative sample testimonial letter on behalf of Lutrexin. The panel of NAS-NRC working in the relevant field reported to FDA that Hyn-son’s claims for effectiveness of the drug were either inappropriate or unwarranted in the absence of submission of further appropriate documentation. At the invitation of the Commissioner of Food and Drugs, Hynson submitted additional data. But the Commissioner concluded that this additional information was inadequate and published notice of his intention to withdraw approval of the NDA’s covering the drug, offering Hynson the opportunity for a prewithdrawal hearing. Before the hearing could take place, Hynson brought suit in the District Court for a declaratory judgment that the drugs in question were exempt from the efficacy review provisions of the 1962 amendments or, alternatively, that there was no lack of substantial evidence of the drug’s efficacy. The Government’s motion to dismiss was granted, the District Court ruling that FDA had primary jurisdiction and that Hynson had failed to exhaust its administrative remedies.
While the District Court litigation was pending, FDA promulgated new regulations establishing minimal standards for “adequate and well-controlled investigations” and limiting the right to a hearing to those applicants who could proffer at least some evidence meeting those standards. Although Hynson maintained that it was not subject to the new regulations because its initial request for a hearing predated their issuance, it renewed its request and submitted the material which it claimed constituted “substantial evidence” of Lutrexin’s effectiveness. The Commissioner denied the request for a hearing and withdrew the NDA for Lutrexin. He ruled that Lutrexin is not exempt from the 1962 amendments and that Hynson had not submitted adequate evidence that Lutrexin is not a new drug or is effective. The Court of Appeals reversed, 461 F. 2d 215, holding that while the drug in question was not exempt, Hynson was entitled to a hearing on the substantial-evidence question.
Section 505 (e) directs FDA to withdraw approval of an NDA if the manufacturer fails to carry the burden of showing there is “substantial evidence” respecting the efficacy of the drug. As the Court of Appeals says, “substantial evidence” was substituted for “preponderance” of the evidence. 461 F. 2d, at 220. The Act and the Regulations, in their reduction of that standard to detailed guidelines, make FDA’s so-called administrative summary judgment procedure appropriate.
The general contours of “substantial evidence” are defined by § 505 (d) of the Act to include “evidence consisting of adequate and well-controlled investigations, including clinical investigations, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved, on the basis of which it could fairly and responsibly be concluded by such experts that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling or proposed labeling thereof.” 21 U. S. C. § 355 (d). Acting pursuant to his “authority to promulgate regulations for the efficient enforcement” of the Act, § 701 (a), 21 U. S. C. §371 (a), the Commissioner has detailed the “principles... recognized by the scientific community as the essentials of adequate and well-controlled clinical investigations. They provide the basis for the determination whether there is ‘substantial evidence’ to support the claims of effectiveness for ‘new drugs’... 21 CFB, § 130.12 (a)(5)(h). They include a “plan or protocol” setting forth the objective of the study and an adequate method for selecting appropriate subjects, explaining the methods of observation and steps taken to minimize bias, providing a comparison by one of four “recognized” methods of the results of treatment or diagnosis with a control, and summarizing the methods of analysis, including any appropriate statistical methods. Id., § 130.12 (a)(5)(ii)(a). No investigation will be considered “adequate for approval of a new drug” unless the test drug is “standardized as to identity, strength, quality, purity, and dosage form to give significance to the results of the investigation.” Id., § 130.12 (a) (5) (ii) (b). Finally, the regulation provides that “ [uncontrolled studies or partially controlled studies are not acceptable as the sole basis for the approval of claims of effectiveness. Such studies, carefully conducted and documented, may provide corroborative support.... Isolated case reports, random experience, and reports lacking the details which permit scientific evaluation will not be considered.” Id., § 130.12 (a) (5) (ii) (c).
Lower courts have upheld the validity of these regulations, and it is not disputed here that they express well-established principles of scientific investigation. Moreover, their strict and demanding standards, barring anecdotal evidence indicating that doctors “believe” in the efficacy of a drug, are amply justified by the legislative history. The hearings underlying the 1962 Act show a marked concern that impressions or beliefs of physicians, no matter how fervently held, are treacherous. Congress in its definition of “substantial evidence” in § 505 (d) wrote the requirement of “evidence consisting of adequate and well-controlled investigations.” The Senate Report makes clear that an abrupt departure was being taken from old norms for marketing drugs. There had been mounting concern over efficacy of drugs as well as their safety. The Report stated:
“[A] claim could be rejected if it were found (a) that the investigations were not 'adequate; (b) that they were not 'well controlled’; (c) that they had been conducted by experts not qualified to evaluate the effectiveness of the drug for which the application is made; or (d) that the conclusions drawn by such experts could not fairly and responsibly be derived from their investigations.”
To be sure, the Act requires FDA to give “due notice and opportunity for hearing to the applicant” before it can withdraw its approval of an NDA. § 505 (e), 21 U. S. C. §355 (e). FDA, however, by regulation, requires any applicant who desires a hearing to submit reasons “why the application... should not be withdrawn, together with a well-organized and full-factual analysis of the clinical and other investigational data he is prepared to prove in support of his opposition to the notice of opportunity for a hearing.... When it clearly appears from the data in the application and from the reasons and factual analysis in the request for the hearing that there is no genuine and substantial issue of fact..., e. g., no adequate and well-controlled clinical investigations to support the claims of effectiveness,” the Commissioner may deny a hearing and enter an order withdrawing the application based solely on these data. 21 CFR § 130.14 (b). What the agency has said, then, is that it will not provide a formal hearing where it is apparent at the threshold that the applicant has not tendered any evidence which on its face meets the statutory standards as particularized by the regulations.
The propriety of such a procedure was decided in United States v. Storer Broadcasting Co., 351 U. S. 192, 205, and FPC v. Texaco, 377 U. S. 33, 39. We said in Texaco:
“[T]he statutory requirement for a hearing under § 7 [of the Natural Gas Act] does not preclude the Commission from particularizing statutory standards through the rulemaking process and barring at the threshold those who neither measure up to them nor show reasons why in the public interest the rule should be waived.” Ibid.
There can be no question that to prevail at a hearing an applicant must furnish evidence stemming from “adequate and well-controlled investigations.” We cannot impute to Congress the design of requiring, nor does due process demand, a hearing when it appears conclusively from the applicant's “pleadings” that the application cannot succeed.
The NAS-NRC panels evaluated approximately 16,500 claims made on behalf of the 4,000 drugs marketed pursuant to effective NDA's in 1962. Seventy percent of these claims were found not to be supported by substantial evidence of effectiveness, and only 434 drugs were found effective for all their claimed uses. If FDA were required automatically to hold a hearing for each product whose efficacy was questioned by the NAS-NRC study, even though many hearings would be an exericse in futility, we have no doubt that it could not fulfill its statutory mandate to remove from the market all those drugs which do not meet the effectiveness requirements of the Act.
If this were a case involving trial by jury as provided in the Seventh Amendment, there would be sharper limitations on the use of summary judgment, as our decisions reveal. See, e. g., Adickes v. Kress & Co., 398 U. S. 144, 153-161; White Motor Co. v. United States, 372 U. S. 253. But Congress surely has great leeway in setting standards for releasing on the public, drugs which may well be miracles or, on the other hand, merely easy money-making schemes through use of fraudulent articles labeled in mysterious scientific dress. The standard of “well-controlled investigations” particularized by the regulations is a protective measure designed to ferret out those drugs for which there is no affirmative, reliable evidence of effectiveness. The drug manufacturers have full and precise notice of the evidence they must present to sustain their NDA’s, and under these circumstances we find PDA hearing regulations unexceptionable on any statutory or constitutional ground.
Our conclusion that the summary judgment procedure of FDA is valid does not end the matter, for Hynson argues that its submission to FDA satisfied its threshold burden. In reviewing an order of the Commissioner denying a hearing, a court of appeals must determine whether the Commissioner’s findings accurately reflect the study in question and if they do, whether the deficiencies he finds conclusively render the study inadequate or uncontrolled in light of the pertinent regulations. There is a contrariety of opinion within the Court concerning the adequacy of Hynson’s submission. Since a majority are of the view that the submission was sufficient to warrant a hearing, we affirm the Court of Appeals on that phase of the case.
II
No. 72-414 is a cross-petition by Hynson from the judgment of the Court of Appeals. This cross-petition raises questions concerning the “new drug” provisions of the 1962 amendments. The Court of Appeals suggested that only a district court has authority to determine whether Lutrexin is a “new drug.” The Government contends that the Commissioner has authority to determine new drug status in proceedings to withdraw approval of the product’s NDA under § 505 (e). Although Hynson agrees, some of the manufacturers, parties to other suits in this group of cases, advance the contrary view.
Prior to 1938 there was no machinery for the pre-marketing approval of drugs sold in commerce. Under the 1906 Act, 34 Stat. 768, adulterated and misbranded drugs were narrowly defined, and the Act provided only criminal sanctions and seizure by libel for condemnation. As previously noted, the 1938 Act provided for regulatory clearance of drugs prior to marketing and for administrative suspension of any clearance if required in the interests of public safety. To introduce a new drug an application had to be effective with respect to that drug. The application was to become effective within a fixed period unless the agency after notice and opportunity for hearing refused to permit it to become effective, finding that it could not determine from existing evidence or had not been shown that it was safe. 52 Stat. 1041-1042, 1052. Any NDA could be suspended if clinical experience or new testing showed that the drug was not safe. Id., at 1053. Orders denying or suspending an NDA were reviewable on the administrative record in a district court. Ibid. Marketing a new drug without an effective NDA could be enjoined or made the basis of a criminal prosecution, or the drug could be seized in libel and condemnation proceedings.
There was a steady stream of NDA’s under that Act supported by voluminous data. Many new drugs claiming “me-too” status were marketed illegally or were launched with an advisory opinion of FDA that they were recognized as safe. It is estimated that by 1969 there were five identical or similar drugs for every drug with an effective NDA. Enormous administrative problems were created. Each NDA contained about 30 volumes, a stack 10 to 12 feet high; and some contained as many as 400 volumes of data.
It is clear to us that FDA has power to determine whether particular drugs require an approved NDA in order to be sold to the public. FDA is indeed the administrative agency selected by Congress to administer the Act, and it cannot administer the Act intelligently and rationally unless it has authority to determine what drugs are “new drugs” under § 201 (p) and whether they are exempt from the efficacy requirements of the 1962 amendments by the grandfather clause of § 107 (c)(4).
Regulatory agencies have by the requirements of particular statutes usually proceeded on a case-by-case basis, giving each person subject to regulation separate hearings. But there is not always a constitutional reason why that must be done. United States v. Storer Broadcasting Co., 351 U. S. 192, is one example. We there upheld rules of the Federal Communications Commission limiting the number of broadcasting stations a single individual might own, saying that that was a proper exercise of the agency's “rule-making authority necessary for the orderly conduct of its business.” Id., at 202. The comprehensive, rather than the individual, treatment may indeed be necessary for quick effective relief. See Permian Basin Area Rate Cases, 390 U. S. 747. A generic drug — which is found to be unsafe and/or lacking in efficacy — may be manufactured by several persons or manufacturers. To require separate judicial proceedings to be brought against each, as if each were the owner of a Black Acre being condemned, would be to create delay where in the interests of public health there should be prompt action. A single administrative proceeding in which each manufacturer may be heard is constitutionally permissible measured by the requirements of procedural due process.
FDA maintains that a withdrawal of any NDA approval covers all “me-too” drugs. For the reasons stated, that procedure is a permissible one where every manufacturer of a challenged drug has an opportunity to be heard. FDA under § 554 of the Administrative Procedure Act may issue a declaratory order governing all drugs covered by a particular NDA. 5 U. S. C. § 554 (e). That section prescribes the procedures an agency must follow “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.” §554 (a). The industry maintains that § 554 (e) is of no avail to FDA because in a withdrawal proceeding a common issue is whether a drug is a “new drug.” That issue, it is argued, can be resolved only in a court proceeding where there is an adjudication “on the record of [a] hearing.” But that assumes an individualized hearing and adjudication as is common in regulatory proceedings. Section 554 (e), however, does not place administrative proceedings in that straitjacket. It provides that an agency “in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.” The termination of a controversy over a “new drug” may often be of prime importance. This is an age of ever-expanding dockets at the administrative as well as at the judicial level. If the administrative controls over drugs are to be efficient, they must be exercised with dispatch. Only paralysis would result if case-by-case battles in the courts were the only way to protect the public against unsafe or ineffective drugs. Moreover, if every “me-too” drug in a particular generic category had to be put to the test in court actions, great inequities might well result. It might take months to eliminate one “me-too” drug manufactured by one com.pany from the market. Meanwhile, competitors selling drugs in the same category would go scot-free until the tedious and laborious procedures of litigation reached them. We cannot believe that Congress engaged in such an exercise in futility when it enacted the 1962 amendments. That would in effect restore the enforcement provisions to the status they enjoyed under the rather primitive 1906 Act. We hold that FDA by reasons of § 554 (e) of the Administrative Procedure Act may issue a declaratory order to terminate a controversy over a “new drug” or to remove any uncertainty whether a particular drug is a “new drug” within the meaning of § 201 (p)(1) of the 1938 Act. See Abbott Laboratories v. Gardner, 387 U. S. 136.
It is argued, however, that the only lawful purpose of an FDA hearing is to allow it a method for determining which lawsuits it will file in the future. Yet that is only another version of the tactics of delay and procrastination which the industry offers as the way best to serve industry's needs. The public needs are, however, opposed and paramount. We do not accept the invitation to hold that FDA has no jurisdiction to determine whether a particular drug is a “new drug” and to decide whether an NDA should be withdrawn.
Its determination that a product is a “new drug” or a “me-too” drug is, of course, reviewable. But its jurisdiction to determine whether it has jurisdiction is as essential to its effective operation as is a court’s like power. Cf. United States v. Shipp, 203 U. S. 563, 573. The heart of the new procedures designed by Congress is the grant of primary jurisdiction to FDA, the expert agency it created. FDA does not have the final say, for review may be had, not in a district court (except in a limited group of cases we will discuss), but in a court of appeals. FDA does not have unbridled discretion to do what it pleases. Its procedures must satisfy the rudiments of fair play. Judicial relief is available only after administrative remedies have been exhausted.
It is argued that though FDA is empowered to decide the threshold-question whether the drug is a “new drug,” that power is only an incident to its power to approve or withdraw approval of NDA’s. Some manufacturers, however, have no NDA’s in effect and are not seeking approval of any drugs. Nevertheless, FDA may make a declaratory order that a drug is a “new drug.” While that order is not reviewable in the court of appeals under § 505 (h), it is reviewable by the district court under the Administrative Procedure Act. 5 U. S. C. §§ 701-704; Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 410; Abbott Laboratories v. Gardner, supra, at 139-148. By analogy an agency order declaring a commodity not exempt from regulation is normally a declaratory order that is reviewable, as we held in Frozen Food Express v. United States, 351 U. S. 40.
The question then presented is whether FDA properly exercised its jurisdiction in this instance. As indicated above, Hynson in requesting an administrative hearing also asked FDA to decide that Lutrexin is not a “new drug” within the meaning of § 201 (p) as amended, 21 U. S. C. § 321 (p). In addition, it asked that Lutrexin be “grandfathered” under § 107 (c) (4) of the 1962 amendments. The Commissioner rejected both claims. Finding that Hynson had failed to present any evidence of adequate and well-controlled investigations in support of Lutrexin’s effectiveness, he concluded that "there is no data base upon which experts can fairly and responsibly conclude that the safety and effectiveness of the drugs has been proven and is so well established that the drugs can be generally recognized among such experts as safe and effective for their intended uses.” The Commissioner also held that Lutrexin is not exempt under § 107 (c) (4) because its NDA, which had become effective in 1953, had not been withdrawn prior to the enactment of the 1962 amendments and thus was “covered by an effective application” within the meaning of § 107 (c)(4)(C). The Court of Appeals affirmed the Commissioner’s ruling that Lutrexin is not exempt under § 107 (c) (4). It did not discuss his holding that Lutrexin currently is a “new drug.” Although we agree that the Commissioner properly ruled that Lutrexin does not come within § 107 (c)(4), we conclude that the Commissioner’s order with respect to Lutrexin’s “new drug” status must be vacated.
The thrust of § 201 (p) is both qualitative and quantitative. The Act, however, nowhere defines what constitutes “general recognition” among experts. Hynson contends that the “lack of substantial evidence” is applicable only to proof of the actual effectiveness of drugs that fall within the definition of a new drug and not to the initial determination under § 201 (p) whether a drug is “generally recognized” as effective. It would rely solely on the testimony of physicians and the extant literature, evidence that has been characterized as “anecdotal.” We agree with FDA, however, that the statutory scheme and overriding purpose of the 1962 amendments compel the conclusion that the hurdle of “general recognition” of effectiveness requires at least “substantial evidence” of effectiveness for approval of an NDA. In the absence of any evidence of adequate and well-controlled investigation supporting the efficacy of Lutrexin, a fortiori Lutrexin would be a “new drug” subject to the provisions of the Act.
As noted, the 1962 amendments for the first time gave FDA power to scrutinize and evaluate drugs for effectiveness as well as safety. The Act requires the Commissioner to disapprove any application when there is a lack of “substantial evidence” that the applicant’s drug is effective. § 505 (d), 21 U. S. C. § 355 (d). Similarly, he may withdraw approval for any drug if he subsequently determines that there is a lack of such evidence. § 505 (e), 21 U. S. C. § 355 (e). Evidence may be accepted only if it consists of “adequate and well-controlled investigations, including clinical investigations, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved....” § 505 (d), 21 TJ. S. C. §355 (d). The legislative history of the Act indicates that the test was to be a rigorous one. The “substantial evidence” requirement reflects the conclusion of Congress, based upon hearings, that clinical impressions of practicing physicians and poorly controlled experiments do not constitute an adequate basis for establishing efficacy. This policy underlies the regulations defining the contours of “substantial evidence”: “Uncontrolled studies or partially controlled studies are not acceptable as the sole basis for the approval of claims of effectiveness. Such studies, carefully conducted and documented, may provide corroborative support of well-controlled studies.... Isolated case reports, random experience, and reports lacking the details which permit scientific evaluation will not be considered.” 21 CFR § 130.12 (a) (5) (ii) (c).
These efficacy requirements were not designed to be prospective only. Clearly, after the initial two-year moratorium on existing drugs, FDA has the power to withdraw an application which became effective prior to the adoption of the 1962 amendments, if the applicant has not provided "substantial evidence” of the drug’s efficacy. The Act plainly contemplates that such drugs will be evaluated on the basis of adequate and well-controlled investigations. Hynson would have us hold that withdrawal proceedings can be thwarted by a showing of general recognition of effectiveness based merely on expert testimony and reports with respect to investigations and clinical observation regardless of the controls used. But, we cannot construe § 201 (p) to deprive FDA of jurisdiction over a drug which, if subject to FDA regulation, could not be marketed because it had not passed the “substantial evidence” test. To do so “would be to impute to Congress a purpose to paralyze with one hand what it sought to promote with the other.” Clark v. Uebersee Finanz-Korp., 332 U. S. 480, 489.
Moreover, the interpretation of § 201 (p) urged by Hynson is not consistent with the statutory scheme as it operates on a purely prospective basis. Under subsection (2), a drug cannot transcend “new drug” status until it has been used “to a material extent or for a material time.” Yet, a drug cannot be marketed lawfully before an NDA has been approved by the Commissioner on the basis of “substantial evidence.” As the Solicitor General argues, “the Act is designed so that drugs on the market, unless exempt, will have mustered the requisite scientifically reliable evidence of effectiveness long before they are in a position to drop out of active regulation by ceasing to be a ‘new drug.’ ”
It is well established that our task in interpreting separate provisions of a single Act is to give the Act “the most harmonious, comprehensive meaning possible” in light of the legislative policy and purpose. Clark v. Uebersee Finanz-Korp., supra, at 488; see United States v. Bacto-Unidisk, 394 U. S. 784, 798. We accordingly have concluded that a drug can be “generally recognized” by experts as effective for intended use within the meaning of the Act only when that expert consensus is founded upon “substantial evidence” as defined in § 505 (d). We have held in No. 72-394, however, that the Commissioner was not justified in withdrawing Hynson’s NDA without a prior hearing on whether Hynson had submitted “substantial evidence” of Lutrexin’s effectiveness. Consequently, any ruling as to Lutrexin’s “new drug” status is premature and must await the outcome of this hearing.
Finally, we cannot agree with Hynson that Lutrexin is exempt from the provisions of the Act by virtue of § 107 (c) (4) of the 1962 amendments. That section provides that no drug will be treated as a “new drug” if, on the day preceding the adoption of the amendments, the drug “(A) was commercially used or sold in the United States, (B) was not a new drug as defined by section 201 (p) of the basic Act as then in force, and (C) was not covered by an effective application under section 505 of that Act....” The applicability of this section turns solely on whether Lutrexin was “covered” by an effective NDA immediately prior to the adoption of the 1962 amendments. Hynson argues that when Lutrexin became generally recognized as safe and was no longer a “new drug,” its NDA ceased to be effective.
That argument draws no statutory support. The 1938 Act did not provide any mechanism other than the Commissioner’s suspension authority under § 505 (e), whereby an NDA once effective could cease to be effective. Indeed, § 505 (e) leads to the conclusion that an NDA remains effective unless it is suspended. That section empowers FDA to withdraw approval of an NDA whenever new evidence comes to light suggesting that the drug has become unsafe, whether or not the drug was generally recognized as safe in the interim.
Moreover, Hynson’s argument, as the Court of Appeals recognized, would
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
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songer_genapel2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task 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.
Elizabeth L. FERGUSON, Appellant, v. Richard S. SCHWEIKER, Secretary United States Department of Health and Human Services.
No. 84-1607.
United States Court of Appeals, Third Circuit.
Argued May 2, 1985.
Decided June 11, 1985.
Eric J. Fischer (Argued), Community Legal Services, Inc., Philadelphia, Pa., for appellant.
Edward S.G. Dennis, Jr., U.S. Atty., Serena Dobson, Asst. U.S. Atty., E.D. Pa., Beverly Dennis, III, Regional Atty., Edith M. Ho (Argued), Asst. Regional Atty., Office of the Gen. Counsel, Dept, of Health & Human Services, Philadelphia, Pa., for ap-pellee.
Before GIBBONS and HIGGIN-BOTHAM, Circuit Judges and SAROKIN, District Judge .
Hon. H. Lee Sarokin, United States District Judge for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
Elizabeth L. Ferguson appeals from summary judgment in this Supplemental Security Income (“SSI”) case in favor of the Secretary of Health and Human Resources. In April of 1980, Ferguson had applied for SSI benefits alleging that she was disabled within the meaning of Title XVI of the Social Security Act, 42 U.S.C. § 1381 (1982), and § 1382c(a)(3)(A) (1982) et seq. Her claims were denied at all administrative levels and the district court held the Secretary’s decision to be supported by substantial evidence. Ferguson appeals the Secretary’s determination that her impairments are not “severe” within the meaning of 20 C.F.R. § 416.920(c). We conclude that Ferguson has submitted sufficient evidence to prove a prima facie case of disability under the standards announced by this court in Rossi v. Califano, 602 F.2d 55, 58 (3d Cir.1979), and that the Secretary failed to meet the burden of proof established by Rossi for overcoming a claimant’s prima facie claim for benefits. We, therefore, reverse and remand for entry of an order directing the Secretary to pay disability benefits.
I.
Factual Background
Ferguson is 67 years old, has a seventh grade education, has received no vocational training and claims to have been disabled since 1967 or 1968. Her memory of her job positions is vague and confused, but she acknowledges that, from 1952 through 1967, she performed domestic work in private homes that required frequent bending and reaching while mopping, vacuuming, sweeping, and cooking. From 1962-67, Ferguson also operated a power sewing machine with foot controls and did some light hand sewing. In 1978, she attempted to work as a salad maker five days a week, three hours a day. The latter position required her to stand most of the time, walk a great deal, and constantly bend and reach. Ferguson testified that she lifted no more than 15 pounds on this job. She used both hands for washing and cutting the salad and for serving the salad to customers. She lasted only three months in this position.
Dr. Henry Scott, a general practitioner, has been Ferguson’s treating physician since 1968. Dr. Scott’s letters and clinical notes indicate that Ferguson visited Dr. Scott consistently from 1968 through December of 1982 and that, over this period, he treated her for hypertensive cardiovascular disease, chest pain, lower back pain, anxiety neurosis, degenerative joint disease, headaches, fungus infection of both hands, bronchitis, diabetes-mellitus, and kidney problems. Tr. 194-95, 196-99, 209, 222-79, 284. Her medications since 1979 include arlidin, hydrodiuril, valium, clinoril, antivert, lotrimin, persantine, and a variety of remedies for upper respiratory infections. Tr. 199.
Beginning in 1980, Ferguson filed three separate SSI applications with the Social Security Administration claiming disability dating back to 1968 due to hypertensive heart disease, hardening of the arteries, bronchitis, asthma, and a fungus infection. The three applications were consolidated and only evidence submitted after December 21, 1977 was considered.
At all levels of agency review, the Secretary had access to Dr. Scott’s written assessments of Ferguson’s condition, which, without exception, classified Ferguson as “disabled” Tr. 196, 284, “not employable” Tr. 196, and “not able to do any work without endanger [sic] to her health and those around her.” Tr. 195. By late 1982, in a letter to an Attorney for the Community Legal Services, Dr. Scott opines that Ferguson’s health was deteriorating. He states that Ferguson has painful and swollen hands which emit a foul odor most of the time due to onychomycosis (chronic fungus infection of both thumbs) and that when attacks are acute she has difficulty holding objects. Dr. Scott also notes that (1) Ferguson experiences shortness of breath, probably due to her hypertensive cardiovascular disease, which is made worse when she sits or rises on a frequent basis; that (2) she cannot lift twenty pounds occasionally or ten pounds frequently without placing an excessive burden on her heart; and that (3) under minor physical or mental stress, Ferguson’s heart condition could lead to heart failure. Finally, Dr. Scott reports that other tests and lab reports indicate that Ferguson has mild diabetes, degenerative joint disease, gouty arthritis, some kidney deterioration, and arthritis in her joints that limits her ability to bend, walk, or stand. Tr. 194-95, 213, 215.
In another set of correspondence, Dr. Scott notes that (1) beginning in 1980 Ferguson complained of chest pains and that these pains today are aggravated when she walks or climbs stairs; (2) although the drug persantine gives some relief, “[f]rom a cardiac standpoint she has been advised against over-exertion, which includes prolong [sic] standing, walking, bending, climbing or running;” (3) her arthritis, complicated by gout, has not improved, causing her stiff knees at times, making it difficult for her to walk; (4) although her blood pressure is controlled by hydrodiuril, “medically she has suffered some damaged [sic] to her kidneys, heart and possibly her brain” and (5) she has recently developed a fine tremor in her head, probably resulting from hardening of the arteries due partially to hypertension. Tr. 196.
Two weeks later, Dr. Scott wrote again to add that (1) Ferguson’s cardiovascular system had deteriorated; she had developed severe shortness of breath and chest pains on exertion; (2) her fingers remained sore and infected so that it occasionally was very difficult for her to use them; and (3) in spite of adequate medication, her health had further deteriorated. Tr. 199.
By 1983, Ferguson’s situation had worsened. She testified before the Administrative Law Judge that she experiences migraine headaches at least three times a week, has difficulty walking more than fifteen minutes, or sitting for more than six minutes, and experiences dizzy spells. Tr. 86, 88-89. She suffers chest pains twice a day that are temporarily relieved by nitroglycerin. She also experiences pain in her legs, back, and hips, for which she takes clinoril and valium. Tr. 88-98, 107-08. She also claims that she cannot lift a ten-pound bag due to the pain in her back and chest. Tr. 105.
Ferguson’s normal routine is to arise at 7:30 a.m., make breakfast and sit “as long as I can,” then lie in bed from 10:00 a.m. to 2:00 p.m., and from 3:00 p.m. to 5:00 p.m. Tr. 108-09. She is able to make her own bed, get dressed (though she experiences some difficulty with the latter task due to pain in her hands), wash the dishes, dust, machine launder, and attend short church services. Tr. 115. She testifies that she cannot drive, vacuum or shop for groceries alone. Tr. 108-13.
Of primary importance, Ferguson states that she will never be able to return to any of her jobs because (1) as a salad maker, pain in her legs and hips creates an inability to stand or bend; (2) as a machine operator, she cannot sit for the requisite amount of time; and (3) as a domestic helper, she cannot bend, stand very long, or push a vacuum sweeper. Tr. 122-24.
II.
Decision of the Secretary
After considering the medical evidence and Ferguson’s testimony, the Administrative Law Judge (AU) determined that Ferguson did not have a “severe” impairment or combination of impairments that significantly limit her ability to do basic work activities. This conclusion was based on findings; to wit, that Ferguson’s hypertension has not resulted in end-organ damage and is controlled adequately by medication; that objective evidence regarding her complaints of chest pain and shortness of breath is limited to “non-specific EKG findings,” and that her testimony that she cannot lift ten pounds is against the weight of the medical evidence. He also determined that there is no evidence of a symptomatic kidney problem, no clinical explanation for the complaints of headaches, and no reason to believe Ferguson’s onychomycosis is vocationally significant. The AU believed that the objective evidence regarding any pain Ferguson feels she might have in her joints indicates only mild arthritis, and that her complaints of anxiety neurosis and of poor vision cannot be considered severe since she has not taken steps to see a psychiatrist or an optometrist.
The AU also found Ferguson’s subjective testimony regarding her pain and shortness of breath lacking in credibility: “In view of the objective medical evidence and the claimant’s appearance and demean- or, the undersigned does not believe that the claimant experiences pain or shortness of breath of such frequency, severity and duration as to significantly interfere with her ability to do work.” Tr. 18.
Finally, the AU refused to give weight to Dr. Scott’s conclusion that Ferguson is disabled, finding it not supported by the objective medical findings: “They [Dr. Scott’s conclusions] are too speculative to support a finding of disability.” Tr. 18.
Thus, Ferguson’s application for Supplemental Security Income Benefits was denied. The Appeals Council adopted the recommendation of the AU. Tr. 5-6.
III.
The District Court Opinion
Ferguson argued before the district court that the AU failed to give sufficient weight to Dr. Scott’s statements as required by Rossi v. Califano, 602 F.2d 55 (3d Cir.1979). Ferguson claims that her subjective evidence, supported by the statements of her treating physician, were sufficient to establish a prima facie case of disability under Rossi. The district court disagreed, holding Rossi inapplicable when the “credibility” and “compentency” of the treating physician’s statements are in issue:
Since Rossi does not require that the AU accept all statements by the claimant’s treating physician as credible and beyond disbelief which are unsupported by objective evidence, the court finds substantial evidence on the record to support the AU’s decision to find the physician’s assertions unpersuasive and speculative.
District Court Opinion, App. 126 (citations omitted). Moreover, the district court concluded that Ferguson’s failure to present objective medical evidence, when viewed against the backdrop of evidence refuting many of the alleged disorders, supported the Secretary’s decision of non-disability.
IV.
The Rossi v. Califano Standard in the Context of an SSI Case
Ferguson appeals the Secretary’s determinations, claiming they are not supported by substantial evidence. Additionally, she argues that the Secretary’s decision evidences (1) a failure to allocate properly the burdens of proof; (2) an impermissible substitution of the Administrative Law Judge’s medical judgment for that of the treating physician; (3) the failure to accord the treating physician’s opinion its proper weight; and (4) improper refusal to credit the appellant’s testimony of pain, when objective medical evidence of an impairment is of record.
Ferguson argues (1) that she has submitted enough evidence to prove a prima facie case; (2) that the burden shifted to the Secretary; and (3) since there is no other medical evidence in the record the Secretary has not met the burden of countering the claimant’s evidence of disability. We agree.
In Rossi v. Califano, 602 F.2d 55 (3d Cir.1979) [a Title II case], we stated:
There is a two-pronged test for social security act disability: (1) determination of the extent of disability; and (2) determination whether that impairment results in inability to engage in substantial gainful activity. A claimant satisfies her initial burden of proof by showing that she is unable to return to her customary occupation— Once she has made such a demonstration, the burden of proof shifts to the Secretary to show that the claimant, given her age, education, and work experience, has the capacity to perform specific jobs that exist in the national economy.... If there is no finding as to the availability of alternative employment a denial of disability benefits can only be sustained if there is medical evidence in the record that claimant’s impairment did not prevent her from engaging in her former occupation.
602 F.2d at 57 (emphasis added, footnotes omitted). Thus, under proper disability procedures, Ferguson must satisfy her burden by showing an inability to return to former work. The burden then shifts to the Secretary to show that there is other employment the applicant is capable of performing. Rossi, 602 F.2d at 58; Dobrowol-sky v. Califano, 606 F.2d 403 (3d Cir.1979).
We believe that for purposes of her SSI claim Ferguson has produced sufficient supporting medical documentation to prove a prima facie case of disability and that the burden of proof shifted to the Secretary. As noted above, Dr. Scott’s conclusions, as of late 1982, were that (1) under minor physical or mental stress, Ferguson’s heart condition could lead to heart failure; (2) Ferguson experiences severe shortness of breath and chest pains upon exertion; (3) she cannot lift twenty pounds occasionally or ten pounds frequently without placing an excessive burden on her heart; (4) her chest pain is made worse when sitting and rising on a frequent basis; and (5) she has been advised against overexertion, which includes prolonged standing, walking, bending, climbing, and running in order to protect her heart. All of these conclusions were based on laboratory reports contained in the record. We believe that the evidence offered by the treating physician is substantial evidence for the conclusion that Ferguson is significantly limited in those physical abilities necessary to do basic work activities such as lifting, pushing, pulling, carrying, prolonged standing, walking, bending, climbing, and running, and also for the determination that she cannot return to any prior work which involves the same. There is simply no medical opinion in the record to the contrary.
Under Title II and Rossi, supra, it is the claimant’s burden to prove, by medical evidence, that she cannot return to past employment. Ferguson has more than met this burden. Furthermore, if the AU believed such evidence was inconclusive or unclear, it was incumbent upon him to secure whatever evidence he believed was needed to make a sound determination.
The applicant, having satisfied her initial burden of proof by demonstrating her inability to return to her former job as salad maker, domestic, or machine operator, the burden of proof shifted to the Secretary to show that Ferguson, given her overall condition, nevertheless retained sufficient capacity to perform specific jobs existing in the national economy.
We also note that the AU acted improperly in discrediting the opinions of Dr. Scott by finding them contrary to the objective medical evidence contained in the file. By independently reviewing and interpreting the laboratory reports, the AU impermissibly substituted his own judgment for that of a physician; an AU is not free to set his own expertise against that of a physician who presents competent evidence. Again, if the AU believed that Dr. Scott’s reports were conclusory or unclear, it was incumbent upon the AU to secure additional evidence from another physician.
As to Ferguson’s complaints of subjective pain, the Secretary’s acts are at odds with the Third Circuit standard, which requires (1) that subjective complaints of pain be seriously considered, even where not fully confirmed by objective medical evidence, Smith v. Califano, 637 F.2d 968, 972 (3d Cir.1981); Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir.1971); (2) that subjective pain “may support a claim for disability benefits,” Bittel, 441 F.2d at 1195, and “may be disabling,” Smith, 637 F.2d at 972; (3) that when such complaints are supported by medical evidence, they should be given great weight, Taybron v. Harris, 667 F.2d 412, 415 n. 6 (3d Cir.1981); and finally (4) that where a claimant’s testimony as to pain is reasonably supported by medical evidence, the AU may not discount claimant’s pain without contrary medical evidence. Green v. Schweiker, 749 F.2d 1066, 1070 (3d Cir.1984); Smith, 637 F.2d at 972.
Based on this record, we believe that Ferguson’s subjective complaints of pain and shortness of breath should have been credited since they are supported by Dr. Scott’s statements and by evidence of medical impairments “which could reasonably be expected to produce the pain or other symptoms alleged.” Green, 749 F.2d at 1069 (3d Cir.1984) (referencing Section 3(a)(1) of the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, reprinted in 130 Cong.Rec. H9821-9827, 20 C.F.R. § 416.929 (1984)). Under the Act, objective medical proof of each and every element of pain is not required. Id. at 1070; see also Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir.1983) (testimony of subjective pain is entitled to great weight, particularly when supported by competent medical evidence).
Because the AU determined that Ferguson’s impairments are not severe he did not reach the question of whether her impairments prevent her from returning to her customary employment as salad maker, sewing machine operator, or domestic assistant. Unless a medical opinion to the contrary is obtained, the evidence of record appears to establish that Ferguson cannot return to her past work.
Since Ferguson has established a prima facie case of disability, since there is no substantial contrary evidence, and since there is no evidence of the possibility of alternative employment, we find the Secretary’s decision not supported by substantial evidence. The judgment of the district court will be reversed and remanded with a direction for an order directing the Secretary to pay disability benefits.
. 42 U.S.C. § 1381 establishes a national program to provide supplemental security income to individuals who have attained age 65 or are blind or disabled. 42 U.S.C. § 1382c(a)(3)(A) reads:
An individual shall be considered to be disabled for purposes of this subchapter if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months____
. 20 C.F.R. § 416.920(c) reads:
You must have a severe impairment. If you do not have any impairment(s) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.
. The record contains only evidence and reports submitted by Dr. Scott, and supportive test re-suits. The record does not contain medical reports in support of the Secretary’s position.
. The statutory language in Title II which places the burden of proof as to the medical basis of a finding of disability on the claimant at all times is simply not present in Title XVI. See 42 U.S.C. § 423(d)(5) (1976). For example, although the definitions of disability for the Supplemental Security Income for the Aged, Blind and Disabled Program (Title XVI of the Act) are practically identical to the definitions in Title II (cf. 42 U.S.C. § 1382c(a)(3)(A), (B), (C) & (D) with 42 U.S.C. § 423(d)(l)(2), (3) & (4)), a provision such as § 423(d)(5) is noticeably absent from Title XVI.
The reason for such absence is explained in the legislative history. The legislative history makes clear that the SSI benefits program is a program for needy aged, blind, and disabled who do not have insured status and thus do not qualify for benefits under Title II. H.R. No. 92-231, reproduced in 1972 U.S.Code Cong. & Ad. News 4989-92, 5133. Thus, although the definitions of disability under both programs are the same, the burden of producing the medical documentation required to establish disability is not:
Your committee recognizes that under a needs program, it would be unreasonable to expect a claimant to pay for the medical evidence necessary to establish disability or blindness or even to provide the same extent of medical documentation required under Title II of the Social Security Act. Thus, the Secretary would be expected to secure the needed medical evidence and [sic] the evidence was needed to make a sound determination.
Id. at 5134 (emphasis added). Thus, in an SSI case, if there is insufficient medical documentation or if the medical documentation is unclear, it is incumbent upon the Secretary to secure any additional evidence needed to make a sound determination.
. See Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir.1983); Kent v. Schweiker, 710 F.2d 110, 114-15 (3d Cir.1983); Kelly v. Railroad Retirement Board, 625 F.2d 486, 494 (3d Cir.1980); Fowler v. Califano, 596 F.2d 600, 602-03 (3d Cir.1979); Rossi v. Califano, 602 F.2d at 58; Gober v. Matthews, 574 F.2d 772, 797 (3d Cir. 1978); see also Wallace v. Secretary, 722 F.2d 1150, 1155 (3d Cir.1983) (opinion of a treating physician is entitled to substantial weight).
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_search
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" 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". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case.
UNITED STATES of America, Plaintiff, v. Richard Kenneth BEYE, Appellant.
No. 24418.
United States Court of Appeals, Ninth Circuit.
July 8, 1971.
Ely, Circuit Judge, dissented and filed opinion.
William N. Fielden (argued), La Jol-la, Cal., for appellant.
Shelby Gott, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.
Before MERRILL and ELY, Circuit Judges, and CROCKER, District Judge
Honorable M. D. Crocker, United States District Judge for the Eastern District of California, sitting by designation.
PER CURIAM:
Beye appeals from his conviction for knowingly concealing or facilitating the transportation of marijuana in violation of 21 U.S.C. § 176a and for knowingly concealing or facilitating the transportation of illegally imported amphetamine tablets and barbiturate capsules in violation of 18 U.S.C. § 545.
Appellant relies primarily upon the argument that he was the victim of an unlawful search and seizure. We find no merit in this contention. The discovery of the drugs occurred at an immigration checkpoint in the course of a lawful search for aliens. See, e. g., Fumagalli v. United States, 429 F.2d 1011 (9th Cir. 1970).
Appellant also asserts as error the court’s refusal to permit him to call as a witness one who had been indicted with him as codefendant but as to whom a mistrial had been declared. The court had been advised that this proposed witness would assert his privilege against self-incrimination if questioned about the offense. A hearing out of the presence of the jury served to satisfy the court that such would indeed be the result were the witness called to the stand. Appellant contends, however, that he was entitled to require the witness to take the stand and invoke his privilege in the presence of the jury. Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970), holds to the contrary and we agree.
Other points asserted by appellant we find to be without merit.
Judgment affirmed.
. Although (as Judge Ely mentions in his dissent, footnote 1), the drugs were found secreted in a part of the car that had been searched when it crossed the border, there was evidence from which it could be deduced that the drugs had originally been hidden beneath the car in an area that had not been searched.
Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
RIDDLE v. SOUTHERN RY. CO. et al.
No. 4566.
Circuit Court of Appeals, Fourth Circuit.
Aug. 30, 1940.
Edwin S. Hartshorn, of Asheville, N. C. (Francis J. Heazel, George. A. Shuford, Heazel, Shuford & Hartshorn, and William A. Sullivan, all of Asheville, N. C., on the brief), for appellant.
G. Lyle Jones, of Asheville, N. C. (W. T. Joyner, of Raleigh, N. C., and George H. Ward, G. L. Jones, Jr., and Jones, Ward & Jones, all of Asheville, N. C., on the brief), for appellees.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
This was a civil action instituted by the plaintiff, as administratrix of her deceased husband, Clyde Riddle (hereinafter called Riddle), against the Southern Railway Company and certain other defendants, to recover damages for the alleged wrongful death of Riddle, the plaintiff's intestate. The action, originally instituted in a state court of North Carolina, was duly removed by the defendants to the United States District Court for the Western District of North Carolina.
During the trial, the form of the issues to be submitted to the jury was agreed upon, ' and was approved by the court. The second • of these issues was: “Did the plaintiff’s intestate, Clyde Riddle, by his own negligence, contribute to his injury and death, as alleged in the answer?” At the close of all the evidence, Judge Webb directed the jury to answer this second question in the affirmative. The jury, in obedience to the peremptory instruction, answered the second issue “Yes”. Judgment was thereupon entered against the plaintiff and in favor of the defendants. Plaintiff-appellant, after due objections and exceptions to the rulings and judgment of the District Court, appealed to this court.
For the purpose of this appeal, plaintiff-appellant raises four separate questions. These four questions, however, are closely interrelated, and we are called on to decide only one question: was Judge Webb correct in deciding that the plaintiff’s intestate was guilty of contributory negligence, as a matter of law? We believe Judge Webb’s ruling was correct.
This statement of the salient facts in the case is taken from- the brief of appellant (pp. 3 and 4):
“Plaintiff’s intestate, Clyde Riddle, 27 years of age, was driving an automobile truck in connection with a highway construction job near Enka, Buncombe County, North Carolina, on December 17, 1936. The highway under construction, (U. S. No. 23), is parallel to and North of the main track of the Murphy Division of the defendant, Southern Railway Company, and both run approximately East and West. Just South of the main track and parallel to it is a side track. The North rail of the side track is 8.3 feet south of the South rail of the main track. A ‘Loading Road’ is about 4 feet South of the South rail of the side track. Another road crosses the side track and main track and extends North to U. S. No. 23.
“Two box cars were parked on the side track just West of this cross-road. These two box cars extended about 85 feet along the side track. The Northern side of the box cars was 5.8 feet South of the Southern rail of the main track. Box cars are from 9-1/4 to 10-1/4 feet wide and 13.6 feet high.
“Riddle had loaded his truck with cement from the Western-most box car, backed to the cross-road and was proceeding North on the cross-road. When the cab of his truck cleared the Northern edge of the box cars, he looked both ways, saw that a passenger train travelling East was about to strike his truck (the front end of which was already on the main track), and threw up his hands, and the train struck his truck, knocking it sonic 40 feet down the track, and fatally injuring Riddle. The rear end of the train was some 300 feet past the crossing when the train stopped. * * * There was considerable noise caused by the trucks in the neighborhood of the crossing.
“The track was straight for perhaps half a mile or more West of the crossing, and is on top of the ground for about 677 to 777 feet to the West of the crossing. West of that it is in a cut for some distance. There are bushes and trees South of the track, about 477 feet West of the crossing.
“The highway construction work, unloading of materials from cars on this siding, and hauling same across the tracks to the highway under construction, with trucks crossing the tracks almost continuously during daytime when work was in progress, had been going on for several weeks before the collision.
“The train was operated by the defendant Southern Railway Company, and the individual defendants were the train crew, (engineer, fireman, conductor). The engineer operates the locomotive seated on the right side thereof.”
For the purposes of this opinion, it may be conceded that there was negligence on the part of the defendant. The facts of the case, however, show very clearly that no recovery in favor of the plaintiff could possibly be predicated hereupon the doctrine of last clear chance.
Plaintiff-appellant relies very heavily upon the opinion of Mr. Justice Cardozo in the well-known case of Pokora v. Wabash Railway Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049. We have no quarrel with the opinion in that case, in which it was held that the plaintiff was not guilty of contributory negligence as a matter of law. We think, though, that the facts in the instant case can very clearly be distinguished from those in the Pokora case.
In the Pokora case, Pokora was driving his truck across a railway grade crossing in the populous city of Springfield, Illinois. There were a large number of railroad tracks, also switches, along the street on which the accident happened. Before entering the street intersection, Pokora had stopped his truck and, before proceeding, he looked for trains, but a string of box cars cut off his view. He listened but heard nothing, neither bell nor whistle. Still listening, he drove across the switch, and was struck by a train coming at an unlawful speed.
In the instant case, there was no evidence whatever to show that Riddle gave even one thought to, or took a single precaution for, his own safety. Apparently, he was quite willing to take a terrible chance. Tragically, it broke against him. After his truck (then facing west) was loaded, he backed first east on the loading-road and then south on the cross-road. The evidence seems to indicate that Riddle then stopped his truck on the cross-road about 30 feet south of the track on which the accident happened. It is a fair inference from the evidence, too, that at this spot there was an appreciable space to the West of the box cars (the direction from which the train was approaching) where the view is unobstructed. He did not then look for a possible approaching train and it is important that, in the statement of facts quoted above from the appellant’s own brief, no mention is made of Riddle’s either looking or listening until the front end of his truck w;as already on the main track of the Southern, when, according to this same statement, (appellant’s ' brief, p. 4) he “threw up his hands and the train struck his truck”.
The evidence showed clearly that many other persons in the neighborhood of the accident both saw and heard the approaching train. Some of these made rather frantic efforts by shouting and waving at Riddle to prevent him from driving his truck in front of the train; but, so the evidence shows, Riddle did not either hear the shouting or see the waving, so he drove his truck on the track, right in the path of the oncoming train. It is not without importance that Riddle (a truck driver in the employ of the road contractor, Strider & Company) was thoroughly familiar with the conditions existing around the place of the accident and the evidence goes even further to show that he must have known the schedule of passenger trains on this Murphy division of the Southern Railway.
We agree with the Pokora case that the law does not, under all circumstances, impose the duty upon a truck driver, upon crossing a railway track with his truck, to get down off his truck, go to the front of the truck and look and listen for trains which might possibly be approaching. It should be noted, however, that Pokora did stop his truck once, did look and listen, and that he was still listening while he was driving his truck across the railroad tracks.
The road in which Riddle was driving his truck when the accident happened was not a city street, as in the Pokora case; nor was it even an important road. It was an unimportant country road which came to a dead-end at a very short distance south of the track on which the train in question was running.
In the Pokora case, Justice Cardozo learnedly discussed at some length the varying rules laid down by different courts as to the duty of one crossing a railway track, to stop, look and listen. Then he said (292 U.S. 104, 54 S.Ct. 582, 78 L.Ed. 1149, 91 A.L.R. 1049): “Choice between these diversities of doctrine is unnecessary for the decision of the case at hand.” The quoted sentence, we believe, is peculiarly applicable to the Riddle case. We believe, though, that our decision here is quite consistent with the Pokora case; is in line with the decisions on this subject by the highest court of North Carolina, Harrison v. North Carolina Railroad, 194 N.C. 656, 140 S.E. 598; and also squares with the decisions of our own court on this point, McNabb v. Virginian Ry., 55 F.2d 137, Calloway v. Pennsylvania Ry. Co. 62 F.2d 27.
We are not unmindful of the fact that the plaintiff’s intestate is guilty of contributory negligence as a matter of law, if, and only if, that is the only reasonable and legitimate inference which can be drawn from the evidence, when that evidence is taken in the 'light most favorable to the plaintiff’s intestate. Any fair-minded person, we believe, upon an impartial consideration of the uncontradicted testimony here, must reach but one conclusion. To the question contained in the second issue: “Did plaintiff’s intestate, Clyde Riddle, by his own negligence, contribute to his injury and death, as alleged in the answer?” there can be, in our opinion, but one reasonable answer — in the affirmative.
For the reasons stated above, we affirm the judgment of the District Court
Affirmed
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_casetyp1_7-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
COMMISSIONER OF INTERNAL REVENUE v. GERSTLE.
No. 8426.
Circuit Court of Appeals, Ninth Circuit.
March 25, 1938.
James W. Morris, Asst. Atty. Gen., and Sewall Key, J. Louis Monarch, Louise Foster, and M. Leo Looney, Jr., Sp: Assts. to Atty. Gen., for petitioner.
Francis W. Murphy, of San Francisco, Cal., for respondent.
Before DENMAN, MATHEWS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
This case was brought here on petition to review a decision of the Board of Tax Appeals. The question presented is whether the respondent is entitled to deduct for income tax purposes his proportionate share of operating losses sustained by syndicates of which he was a member. Specifically, it is whether the syndicates are associations within the meaning of section 2(a) (2) of the Revenue Act of 1926, and section 701 (a) (2) of the Revenue Act of 1928, 26 U. S.C.A. § 1696(3), providing that for the purposes of the act “the term ‘corporation’ includes associations, joint-stock companies, and insurance companies”; or whether, as contended by respondent and as held by the Board, the syndicates are joint ventures. If the latter, the members are taxable as individuals and have the right to deduct each year their proportionate share of the operating losses of the syndicates. If the syndicates are associations, and therefore, taxable entities, their losses are personal to them and cannot be deducted by any one else.
Income taxes for the years 1927, 1928, and 1929 are involved. The material facts are stipulated and disclose the following situation: For many years prior to 1927 the respondent and the several other members of the syndicates involved had been directors of corporations owning large department stores in San Francisco and Oakland. In 1927 it was decided to build a new store in Oakland some blocks away from the then business district. The respondent and his associates decided to purchase properties in the immediate vicinity of the proposed new store in order that they might realize profits from an expected increase in value of the neighboring real estate. The original plan was expanded somewhat to include the purchase of other properties in Oakland in anticipation of a general rise in real estate values. Four syndicates in all were organized within a few weeks of each other, the members contributing to a pool to be used for the purchase of the properties thereafter acquired. At the outset it was their purpose to purchase certain properties which they believed could be quickly resold at a profit. It was not then the purpose to improve any of the properties acquired. The management of the properties was intended to be such only as would be necessarily incident to the ownership in the interim between purchase and anticipated sale.
The syndicate agreements were made in writing by three syndicate managers and those who affixed their signatures as members. All four agreements are identical in form. It was recited that the syndicate members are desirous of acting jointly in the purchase, management, and sale of real properties in Oakland, and for that purpose have requested the syndicate managers to act as their agents and trustees. The parties agreed that the managers should purchase, manage, and sell the real properties for the account of the members, the managers to have complete discretion in the selection of the properties to be purchased, the amount of the purchase price, the details of management, the terms of sale and of mortgage, and of all other matters related to the syndicate operations. The properties purchased might be taken in any names the managers might determine'. It was provided that each member on executing the agreement should set down after his name the amount he would contribute to the operations, “and his interest in the properties, profits, obligations, debts and losses of the syndicate shall be that proportion thereof which the amount set after his signature bears to the total of the amounts set after the signatures of all the syndicate members.” It was agreed that the funds required for the operations of the syndicate should be provided by the members, who were to pay to the manag -rs, on call, their respective proportions of the total sum called for, “provided that no syndicate member shall be called upon, prior to the termination of the syndicate, to pay a greater aggregate amount than that set after his signature hereto.” The managers were empowered to borrow money in their own names or in the names of others for the benefit of the syndicate, and the members were liable for the repayment thereof in proportion to their respective interests. The managers, who might act by majority, were not'to be responsible for any act performed in good faith, and were to be indemnified and held harmless by the members from any loss or liability that they might be subjected to. In the event of vacancies, successors to syndicate managers might be appointed by the members. The managers were entitled to compensation under certain conditions. The syndicate might be terminated by the managers or by members holding at least two-thirds of the beneficial interest, and upon termination the syndicate property was to be delivered to the members in their proper proportions, and if there should be a loss, each member was required forthwith to pay his proper proportion to the managers. No assignment by a syndicate member of his interest could be made effective until written notice thereof had been delivered to the managers, “nor shall any assignment release the syndicate member so assigning from liability hereunder unless the syndicate managers shall so agree in writing.” The agreements were to be executed in any number of counterparts, each constituting a single agreement. No certificates or other evidence of interest were provided for in the agreement, nor were any ever issued.
Syndicate No. 1 was the original syndicate, through which six properties were purchased. The purpose of syndicate No. 2 was the purchase and resale of St. Mary’s College property. Syndicate No. 3 acquired two properties, and syndicate No. 4 was formed to acquire what is called the Gross property. No other properties were purchased.
The anticipated rise in values did not occur. There was instead a decline which continued throughout the subsequent years. By reason of these circumstances, the syndicate managers were compelled to operate certain of the buildings and to rent the remaining unimproved properties, these latter being temporarily appropriated for a variety of purposes. Prior to 1930, two properties only were resold, the remainder in the latter year being transferred to corporations.
At the commencement of the operations an arrangement was made with 'a bank to provide the funds origjnally required for the purchase of the several properties, these funds being advanced on the notes of the syndicate managers. The acquisitions were made on the recommendation of the bank and a firm of real estate brokers in Oakland. Believing that a disclosure of the identities of the real parties in interest would result in an immediate increase in. prices, precautions were taken to conceal the identities of the members of the syndicate. Accordingly, title to all properties was taken in the name of one or the other of two title companies.
The syndicates, as such, had no name. There were no officers except as the managers might be so considered. The agreements provided the sole evidence of the interest of the several members, and each member received an executed counterpart. While the agreements gave the managers broad and exclusive powers, the practice was to decide all questions of importance only after the views of all concerned had been obtained. The managers did not organize. The bank, as fiscal agent, kept all records pertaining to syndicate affairs. It rented the improved properties, collected the rents, and paid all expenses. From time to time the syndicate members were called upon to supply funds to the bank proportionate to their respective subscriptions. The funds advanced by the bank on the notes of the syndicate managers, both for the acquisition and subsequent maintenance of the properties, were repaid directly to the bank by the members on calls prepared and issued by the bank directly to the members. As security for the repayment of advances, the bank held declarations of trust covering the syndicate assets executed- by the title companies — the holders of the record title — these declarations of trust being executed with the consent of the managers. The bank was compensated for the services rendered by it.
Large operating losses were sustained by the syndicates during the years in question. The members deducted on 'their individual returns for those years their respective proportions of the losses, and these were disallowed by the Commissioner. The Boai;d disagreed with the Commissioner, holding that the syndicates were not associations taxable as corporations, and that operating losses were allowable to the members.
In Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 295, 80 L.Ed. 263, the court, after reviewing the decisions in Crocker v. Malley, 249 U.S. 223, 39 S.Ct. 270, 63 L.Ed. 573, 2 A.L.R. 1601; and Hecht v. Malley, 265 U.S. 144, 44 S.Ct. 462, 68 L.Ed. 949, said: “While it is impossible in the nature of things to translate the statutory concept of ‘association’ into a particularity of detail that would fix the status of every sort of enterprise or organization which ingenuity may create, the recurring disputes emphasize the need of a further examination of the congressional intent.” Definitions-of the term “association” showing the ordinary meaning of the term as “applicable to a body 'of persons united without a charter ‘but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise,”’ were there said to be helpful, but not to be accepted to the extent of making mere formal procedure a controlling test. “While the use of corporate forms may furnish persuasive evidence of the existence of an association, the absence of particular forms, or of the usual terminology of corporations, cannot be regarded as decisive.” Again, it is said that “the inclusion of associations with corporations implies resemblance ; but it is resemblance and not identity.” Certain salient features of corporate organization, as furnishing analogies, are pointed out by the court. Thus it is said, in substance, that a corporation, as an entity, holds the title to the property embarked in the undertaking; it furnishes centralized management through representatives ; it insures continuity of enterprise; it facilitates the transfer of beneficial interests and the introduction of large numbers of participants; and it permits the limitation of personal liability of participants to the property embarked in the undertaking.
Certain of these features were present in the syndicates involved. While title to the assets was not taken in. the supposed entity or in the syndicate managers, continuity of the enterprise was effected, insuring against disturbance resulting from death or from the transfer of ownership of beneficial interests. Centralized management was provided for in the agreements, notwithstanding in practice there was general consultation before important decisions were reached. See - Helvering v. Coleman-Gilbert Associates, supra, note. In other respects, these syndicates lack analogy to corporations. Two of the characteristic advantages of corporate organization have been generally thought to be the limited liability of the members, and a ready divisibility and transferability of beneficial interests, making toward the inclusion in the enterprise of large numbers of participants. The liability of the syndicate members was not limited. Their beneficial interests were not readily or conveniently transferable. There were no shares, certificates, or other evidence of interest beyond each member’s copy of the agreement. While, in a few instances, divisions were made of their interest by members, orally or in writing, those acquiring proportionate shares of the interest of these members' were never consulted, and no calls were ever made upon them. Their relations were entirely with the member with whom they had originally dealt and from whom their respective interests were acquired. While, as was said in Morrissey v. Commissioner, supra, “the test of an association is not to be found in the mere formal evidence of interests or in a particular method of transfer,” yet the absence of familiar provision for adequate evidence of interest or of any convenient method of transfer is important to be considered.
In A. A. Lewis & Co. v. Commissioner, 301 U.S. 385, 57 S.Ct. 799, 801, 81 L.Ed. 1174, it was said that the trust reviewed in Morrissey v. Commissioner, supra, “was a medium for the carrying on of a business enterprise by the trustees-and participation in the profits by numerous beneficiaries whose interests were represented by transferable share certificates, thus permitting the introduction of new participants without affecting the continuity of the plan. The certificates represented both preferred and common shares. We pointed out that the corporate analogy was evidenced by centralized control, continuity and limited liability, as well as by the issue of transferable certificates.”
An attempted analysis of the character and functions of the syndicates here involved leads to no entirely satisfying conclusion as to what they are. In some respects they resemble partnerships, in others corporations, and in the main they are markedly different from either. The Board held that they were joint ventures, citing the definition of such given in 33 C.J. 841 as “a special combination of two or more persons, where, in some specific venture, a profit is jointly sought, without actual partnership or corporate designation.” It was thought by the Board that the assets acquired through the syndicate activities were the property of the members, as tenants in common, citing McCausey v. Burnet, 60 App. D.C. 201, 50 F.2d 491, and Clark v. Sidway, 142 U.S. 682, 12 S.Ct. 327, 35 L.Ed. 1157. It seems clear that the members were equitable owners of the real property acquired, and that their beneficial interests were not merely personal claims against the syndicate managers.
No useful purpose would be 'served by further review of the many authorities dealing with various aspects of this difficult subject. Attention will be called only to two recent cases involving opposite sets of facts and illustrating the views that have been taken following on the decision of Morrissey v. Commissioner, supra. These are Monrovia Oil Co. v. Commissioner, 9 Cir., 83 F.2d 417, decided by this court, and Myers v. Commissioner, 89 F.2d 86, decided by the Circuit Court of Appeals for the 7th Circuit.
We hold that the syndicates were not associations within the meaning of the applicable statute, and the decision of the Board is therefore affirmed.
And see the cases immediately following: Swanson v. Commissioner, 296 U.S. 362, 56 S.Ct. 283, 80 L.Ed. 273; Helvering v. Combs, 296 U.S. 365, 56 S.Ct. 287, 80 L.Ed. 275; Helvering v. Coleman-Gilbert Associates, 296 U.S. 369, 56 S.Ct. 285, 80 L.Ed. 278.
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_weightev
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
LYDIA E. PINKHAM MEDICINE CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 3764.
Circuit Court of Appeals, First Circuit.
June 26, 1942.
Joseph W. Worthen, of Boston, Mass., for petitioner for review.
Samuel H. Levy, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Mamie S. Price, Sp. Assts. to Atty. Gen., on the brief), for the Commissioner.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAHONEY, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals. It involves income taxes for the years 1936 and 1937. The sole issue is whether the amounts paid in these years to Aroline P. Gove, Treasurer, and Lydia P. Gove, Assistant Treasurer, are deductible as reasonable allowances for personal services actually rendered to the taxpayer under Section 23(a) of the Revenue Act of 1936, 49 Stat. 1648, Ch. 690, 26 U.S.C.A. Int.Rev.Acts, page 827, § 23(a).
The pertinent facts as found by the Board are as follows:
The taxpayer, a Maine corporation, with its laboratories and principal offices in Lynn, Massachusetts, was founded by Lydia E. Pinkham and was incorporated in 1882 as the Lydia E. Pinkham Medicine Company. It is engaged in the manufacture, distribution and sale of a product known as “Lydia E. Pinkham Vegetable Compound”. Aroline P. Gove, the daughter of Lydia E. Pinkham, was the treasurer of the company since its incorporation until her death in 1939; Lydia P. Gove, the granddaughter of Lydia E. Pinkham, was assistant treasurer from 1925 until her mother’s death, and thereafter was elected treasurer. The President, Arthur W. Pinkham, is a grandson of the founder of the business.
In 1921, the capital stock of the taxpayer consisting of 112 shares, was divided into two equal parts designated in the by-laws as the Pinkham and the Gove stock. It is recited in the by-laws that a majority of the Gove stock and a majority of the Pinkham stock constitute a quorum; that there should be six directors, three representing the Goves and three representing the Pink-hams; that the president, one vice president and secretary should be from the Pink-ham stockholders, and the treasurer, assistant treasurer and one vice president from the Gove stockholders. There were other provisions to prevent one faction from doing anything without the approval of the other. Article VII, Section 7, of the By-laws, which deals with the question of compensation to the officers and directors, provides:
“The compensation paid to the Gove directors and the Pinkham directors as such shall be determined by the stockholders. Such compensation and salaries shall be so adjusted and apportioned that there shall be an equality between the aggregate salaries received by officers of the company who are the holders of Gove stock and the aggregate salaries received by officers of the company who are holders of Pinkham stock. The aggregate compensation or salaries received by the officers of the company who are holders of or beneficially interested in the Gove stock shall be apportioned among such officers as shall be determined by a vote of the Gove directors; the aggregate compensation or salaries received by officers of the company who are holders of or beneficially interested in the Pinkham stock shall be apportioned among such officers as shall be determined by a majority of the Pinkham directors. The compensation or salaries of all other officers and employees shall be fixed by the board of directors. Unless voted otherwise unanimously by the full board of directors, the aggregate compensation and salaries of officers holding each class of stock shall not be less than $20,000 per annum.”
In 1928, the aggregate compensation was fixed by the Board of Directors at $60,-000. This sum was distributed in each of the taxable years as follows:
Director s
Salary fees Total Name Office
$14,000 $1,000 $15,000 Arthur W. Pinkham President
6,500 1,000 7,500 Daniel R. Pinkham Vice-President
6,500 1,000 7,500 Charles H. Pinkham Secretary
1,000 1,000 Caroline G. Doty Vice-President
1,000 21,000 Aroline P. Gove Treasurer 1\3 o o o o
1,000 8,000 Lydia P. Gove Asst. Treasurer vr o o o
Aroline was paid $20,000 a year as treasurer since 1926, and Lydia has been paid $7,000 a year since 1928 as assistant treasurer and purchasing agent. The Board found that they had direct supervision of the treasury department of the corporation. The financial affairs-of the taxpayer were conducted by its treasury department. This entailed the handling of several bank accounts, matters of foreign exchange, employing six bookkeepers, keeping books, preparing many and frequent reports, supervising all credit problems with almost complete success, keeping records of stock in various warehouses and orders for stock, taking care of all securities owned by the petitioner, disbursing large sums for advertising, and pqying all bills, including wages of about one hundred employees.
Lydia P. Gove, as purchasing agent of the corporation, received all bids and supervised all purchases made by the petitioner. She signed about twenty-four hundred requisitions, involving supplies costing from $300,000 to $350,000 in each year. Aroline and Lydia were absent and did not-attend to the affairs of the petitioner for a considerable period of time. Aroline was away from some time in May, 1936, until March, 1937, and Lydia from some time in Itjay, 1936, until October, 1936, and then from early in 1937 to March, 1937. It was their custom when attending to the business of the petitioner during the taxable years to go together to the office daily for two or three hours. At these times Lydia signed many checks.
The Commissioner determined the net income of the petitioner for the taxable years to be $504,631.68 and $429,327.53. During this same period the gross sales were $1,244,293.60 and $1,421,943.73. The business was conducted in the United States and in many foreign countries. The sums of $20,000 paid to the treasurer and $7,000 paid to the assistant treasurer as salaries for the taxable years were disallowed by the Commissioner as deductions, on the ground that such payments did not represent reasonable compensation for personal services actually rendered to the taxpayer. Upon petition for redetermination, the Board of Tax Appeals found that the reasonable annual compensation for these services during the years in question was $2,-500 for Aroline and $5,000 for Lydia.
The petition urges that since the directors determined the total sums to be paid the officers and directors, their determination is presumptively correct. It is true, as a general proposition, that a determination by the directors of the value of the services rendered to the corporation is entitled to some weight. Ox Fibre Brush Co. v. Blair, 4 Cir., 1929, 32 F.2d 42, 45, 68 A.L.R. 696, affirmed Lucas v. Ox Fibre Brush Co., 281 U.S. 115, 50 S.Ct. 273, 74 L.Ed. 733. But we think that the Board was entirely justified in attaching no significance to the determination of the Board of Directors in this case because the payments made to the Goves and to the Pink-hams were in accordance with the stock-holding interests of each group, and not as a result of an objective determination of the value of the services rendered by the officers to the petitioner. See General Water Heater Corp. v. Commissioner, 9 Cir., 1930, 42 F.2d 419, 420; Am-Plus Storage Battery Co. v. Commissioner, 7 Cir., 1929, 35 F.2d 167, 169.
A novel argument is made by petitioner that the payments to Aroline and Lydia should be computed in the aggregate because they represent payments to a group. It is contended that the work of the corporation was divided equally between the Pinkhams and the Goves and that the equal division of the sum allocated to salaries was in accordance with this division of labor. Thus, the only proper way to determine what the value of the services was to the corporation is to add the services of the members of each group, and if in the aggregate the value of these group services is equal to the sums paid to them by the corporation, it is entitled to the full deduction. The petitioner readily concedes that L. Schepp Co. v. Commissioner, 25 B.T.A. 419, is correctly decided but asserts that that case is not controlling. There the Board of Tax Appeals rejected the contention “that the test of the statute must be applied to the single aggregate amount of all officers’ salaries”. L. Schepp Co. v. Commissioner, supra, 25 B.T.A. pages 428, 429. It concluded that the statute required compensation for personal services rendered and that an excessive salary to one officer could not be offset by a payment to another officer of a sum less than the value of his services to the corporation. The fact that the salaries in the aggregate are reasonable does not satisfy the statutory requirement. The Schepp case, supra, is not, however, authority for the proposition that compensation to a group in no case may be computed in the aggregate for the purpose of determining an allowable deduction for personal services actually rendered. But we do not have before us a set of facts in which the principle of group compensation, assuming without deciding its validity in some instances, is applicable. Here the duties of the various officers were easily definable; they were the typical duties of the officers of the usual corporation. That the activities of Aroline and Lydia were to a large extent commingled is not evidence of the employment of group services by the corporation. Aroline, who was advanced in years, relied heavily upon Lydia with the result that there was an overlapping of activity. There is no evidence that the corporation intended that there should be this fusion of activities. The Board was justified in drawing the inference from the evidence that it was a matter of convenience to Aroline that Lydia was always at her side. It seems to us that the notion of group compensation is an afterthought in order to present some justification for the manner m which the treasury department functioned. The method of compensation would be of some significance in determining whether the corporation intended to employ the joint services of Aroline and Lydia if it were not for the fact that the by-laws and relevant history of the corporation lead inexorably to the conclusion that each group sought to derive equal benefits from the corporation on the basis of its stock ownership regardless of the services rendered to it.
The petitioner strenuously urges that the Board, by its statement that “it is impossible to tell from this record just what services she [Aroline] rendered and just how much they were worth” demonstrates its error in refusing to apply the principle of group compensation. From what we have said it is clear the petitioner’s contention is untenable. The fact that the Board could not determine what was specifically done by each in no way supports the argument that group compensation should be applied to this case. The burden was upon the petitioner to show what Aroline and Lydia actually did, and the difficulty of the Board in segregating their activities bears heavily against it. Long Island Drug Co. v. Commissioner, 2 Cir., 1940, 111 F.2d 593, 594; certiorari denied 311 U.S. 680, 61 S.Ct. 49, 85 L.Ed. 438; E. Wagner & Son v. Commissioner, 9 Cir., 1937, 93 F.2d 816, 820.
Lucas v. Ox Fibre Brush Co., 281 U.S. 115, 50 S.Ct. 273, 74 L.Ed. 733, is cited in support of the proposition that the payments made to Aroline and Lydia were reasonable for the years in question because of the long service rendered to the corporation by these individuals; that despite the fact that Aroline and Lydia were absent from the affairs of the corporation for a considerable period of time, nevertheless, they were entitled to the sums paid to them because of the assiduousness with which they attended to the financial affairs of the corporation in former years. In the Lucas case, supra, the officers in question had worked for the company for a number of years and had received sums which were not commensurate with "the value of their services to the taxpayer. They had taken the corporation out of a condition which was described by the court as chaotic and had brought it to a position where it made large profits. The Board of Directors explicitly recognized that the added sums paid to these individuals were extra compensation for past services to the company. That case is clearly distinguishable. There is no evidence before us that the officers in question were underpaid for the previous years and that the salaries which they received in the taxable years included compensation for past services rendered to the corporation. All that is known is that in the years in question these officers were away from the affairs of the corporation for a long period of time and that other officers who attended to the affairs of the corporation continuously, including the president, the active head of the business, were paid less during this same time. We think the Board was entirely justified in comparing the services rendered by Aroline and Lydia with the services rendered by the other officers and in concluding that the sums paid to Aroline and Lydia were not commensurate with the value of the work done by them for the corporation. Under the circumstances of this case it was proper for the Board to disregard the opinion evidence offered by petitioner’s expert concerning sums paid as salaries to similar officers in corporations of corresponding size. See H. Levine & Bros., Inc., v. Commissioner, 7 Cir., 101 F.2d 391, 393; Doernbecher v. Commissioner, 9 Cir., 1938, 95 F.2d 296, 298; Am-Plus Storage Battery Co. v. Commissioner, supra, 35 F.2d page 169.
The question of what constitutes reasonable compensation for services rendered to the corporation is one of fact. E. Wagner & Son v. Commissioner, supra; Twin City Tile & M. Co. v. Commissioner, 8 Cir., 1929, 32 F.2d 229. The determination of the Board is conclusive if there is substantial evidence to support its findings. H. Levine & Bros., Inc., v. Commissioner, supra; Doernbecher v. Commissioner, supra. It is not our function to determine de novo what weight should be givqn to the facts in question. That we might have allowed a larger sum as a deduction is not determinative of the issue before us. As was said in Wilmington Trust Co. v. Helvering, 62 S.Ct. 984, 986, 86 L.Ed. -, decided by the Supreme Court April 27, 1942:
“It is the function of the Board, not the Circuit Court of Appeals, to weigh the evidence, to draw inferences from the facts, and to choose between conflicting inferences. The court may not substitute its view of the facts for that of the Board. Where the findings of the Board are supported by substantial evidence they are conclusive. Helvering v. Lazarus & Co. [308 U.S. 252, 60 S.Ct. 209, 84 L.Ed. 226] supra; Helvering v. Kehoe, 309 U.S. 277, 60 S.Ct. 549, 84 L.Ed. 751, and cases cited. Under the statute the court may modify or reverse the decision of the Board only if it is ‘not in accordance with law.’ 44 Stat. 110, § 1003(b), 26 U.S.C. § 1141(c) (1), 26 U.S.C.A. Int.Rev.Code, § 1141(c) (1).”
Viewed in this light, it is clear that we must sustain the Board for the reason that there is ample evidence to support its conclusion.
The decision of the Board of Tax Appeals is affirmed.
Ҥ 23. Deductions from Gross Income
“In computing net income there shall be allowed as deductions :
“(a) Expenses. 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 ; * *
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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.
UNITED STATES of America, Plaintiff-Appellee, v. Harold DAWSON, Defendant-Appellant.
No. 73-2356.
United States Court of Appeals, Ninth Circuit.
May 2, 1975.
Certiorari Denied Oct. 6, 1975.
See 96 S.Ct. 104.
P. Vernon Zeitsoff, Deputy Federal Public Defender (argued), Los Angeles, Cal., for defendant-appellant.
Arthur W. Vance, Jr., Sp. Asst. U. S. Atty. (argued), for plaintiff-appellee.
Honorable Ray McNichols, District of Idaho, sitting by designation.
OPINION
Before BARNES and BROWNING, Circuit Judges, and McNICHOLS, District Judge.
BARNES, Circuit Judge:
This is an appeal from a one-count conviction of bribery (18 U.S.C. § 201(d)). Appellant was found guilty of making an offer of money on January 4, 1973, with the intent to influence the testimony, under oath, of defendant’s brother, Earl Dawson, respecting the burglary of the United California Bank in Laguna Niguel, California, which had occurred on March 25-26, 1972.
There are three issues raised by appellant. We use our own language to describe them:
1. In withdrawing from the trial jury’s consideration (for lack of evidence) a portion of the indictment under which defendant was tried, did the trial judge amend the indictment in violation of defendant’s Fifth Amendment right not to “be held to answer for... [an] infamous crime, unless on. indictment of a Grand Jury”?
2. Did the seizure, and subsequent admission into evidence, of defendant’s hand printed note, taken from him in the visiting room of a prison in which defendant was incarcerated, constitute a violation of either defendant’s Fourth Amendment right to be free from unreasonable searches and seizures, or his Fifth Amendment right not to be compelled to give self-incriminating testimony?
3. Did the trial judge abuse his discretion in admitting into evidence what appellant regards as irrelevant and prejudicial?
There is no dispute as to the proceedings occurring in the district court.
The defendant, Harold Lee Dawson, was indicted by a Federal Grand Jury for the Central District of California on April 30, 1973, in Case No. 12468-CD, for violation of 18 U.S.C. § 201(d), bribery of a witness, to wit: Earl Dawson, “with the intent to influence the testimony under oath of said Earl Dawson as a witness upon” the trial of United States v. Ronald Barber, et al., Case No. 11874-CD.
The defendant was arraigned upon that indictment before the Honorable Manuel L. Real, United States District Judge, on May 7, 1973, and trial thereon was set for June 12, 1973.
On June 11, 1973, superseding indictment No. 12719-CD was returned, charging defendant with violation of 18 U.S.C. § 201(d): bribery of Earl Dawson “with the intent to influence the testimony of said Earl Dawson as a witness at” the trial of United States v. Charles Albert Mulligan, et al., Case No. 10652—CD, and United States v. Ronald Barber, et al., Case No. 11874-CD, “and such hearings and other proceedings held in connection with the aforesaid cases.” (C.T. 1-2.)
The original and the superseding indictments differ in only one regard; that is, the original indictment charges that the money was offered with the intent of influencing Earl Dawson’s testimony in the Barber case, and the superseding indictment charges that the intent was to influence his testimony in both the Mulligan and the Barber cases. Defendant moved that the superseding indictment be dismissed, because of duplicity and undue reliance on hearsay testimony before the Grand Jury. The motion was denied.
Defense counsel also filed a motion to suppress a note taken from the defendant in jail by a guard. This motion was heard and denied prior to trial (R.T. 13). The testimony on this motion showed that a jail guard on duty in the visitor’s room saw conduct on the part of the defendant and another prisoner, (one James Dinsio, another jail inmate, and a co-defendant in the Barber trial), which led him to believe that the two prisoners were passing a note from one to another. Because such conduct was forbidden by prison regulations, the guard seized the note from the defendant, questioned the defendant about it, returned the note to the defendant, and shortly thereafter, being unsatisfied with the defendant’s explanation, seized the note again.
The district court having denied defendant’s motions to suppress and dismiss, Dawson was tried by a jury beginning on June 12, 1973. Final arguments were heard on the morning of June 14, and that afternoon Judge Real instructed the jury and sent them off to deliberate. One of the instructions given to the jury by the trial judge (the construction of which as either being to “amend” or “strike surplusage” is here at issue) was as follows:
“There is removed from your consideration the conduct of the defendant as it might refer in any way to the Case Number 11874 entitled, ‘United States versus Ronald Barber, Harry James Barber and James Frank Dinsio.’ ”
“So you are to consider only the conduct of the defendant with reference to the Case Number 10652, which is the United States versus Charles Albert Mulligan, Ronald Barber, Harry James Barber, Phillip Bruce Christopher and Amil Alfred Dinsio.” (R.T. 543.)
At 5:17 p. m. that same day the jury returned a verdict of guilty.
Dawson was sentenced, on June 29, 1973, to seven years imprisonment under the provisions of 18 U.S.C. § 4208(a)(2), and was made eligible for parole at such time as the Board of Parole may determine, and was required to pay a fine of Forty Thousand Dollars.
Defendant appeals. This Court has jurisdiction to entertain the appeal. (28 U.S.C. §§ 1291 and 1294.)
We find no error, and affirm.
I. Defendant’s Right to a Grand Jury Indictment.
The court, in instructing the jury as hereinbefore set forth, took from the jury the consideration of the following bracketed portion of the indictment:
“.. defendant... corruptly did. promise money to Earl Dawson, a witness, before the United States District Court for the aforesaid District in cases pertaining to the burglary of a California Bank in Laguna Niguel, California, on March 25th, 26th, 1972, and captioned ‘United States versus Charles Albert Mulligan, Ronald Barber, Harry James Barber, Phillip Bruce Christopher and Amil Alfred Dinsio,’ Number 10652 Criminal, [and United States versus Ronald Barber, Harry James Barber and James Frank Dinsio, Number 11874 Criminal,] with the intent to influence the testimony under oath of the said Earl Dawson as a witness at such trials and such hearings and other proceedings held in connection with the aforesaid cases.” (R.T. 542, 543.)
Both criminal cases named in the preceding indictment were prosecutions arising out of one bank robbery, that of the Laguna Niguel Branch of the United California Bank on March 25 and 26, 1972. The first criminal prosecution filed by the Government, No. 10652 was against Charles Albert Mulligan, Ronald Barber, Harry James Barber, Phillip Bruce Christopher, and Amil Alfred Dinsio. The second criminal prosecution filed by the Government, No. 11874, was against Ronald Barber, Harry James Barber and James Frank Dinsio.
The only proof of an offer of money to Earl Dawson by defendant Harold Dawson to have Earl Dawson change his testimony as a witness at any one trial, was that appellant asked Earl Dawson “to help his friend Chuck Mulligan that was earlier convicted of this here bank burglary” (R.T. 105); that Earl should go back to “the lawyers” in Cleveland, and tell these people “that the FBI has made me lie during these other court proceedings” (R.T. 106); and that if I did so “they would set aside a large sum of money [ — “twenty or twenty-five thousand dollars” — ] if I would cooperate.” (R.T. 105.)
Charles Mulligan was not named or charged in any way in the Barber case; and as the > defendant only mentioned Mulligan as the person for whom “help” was asked, the trial court concluded that no evidence existed of bribery to help anyone involved in the Barber case. So concluding, and fearing that the jury might be needlessly confused by the reference to the Barber case, the trial court removed that issue from the jury’s consideration by means of the aforementioned instruction.
The issue we now face is whether that instruction by the court constituted a violation of defendant’s constitutional right to a Grand Jury Indictment. Or, stated alternatively, whether the trial court’s removal of the issue of bribery relative to the Barber case amounted to a constitutionally impermissible amendment of the Grand Jury’s indictment, or the innocuous striking of mere surplus-age therefrom?
The Fifth Amendment guarantees that in federal criminal cases “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. ”...”
In Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), the United States Supreme Court announced the rule that an amendment to the body of an indictment violates defendant’s Fifth Amendment rights and renders a conviction based thereon void. The Court reasoned (Id. at 9-10, 7 S.Ct. 781) that due to the amendment of the indictment, the defendant was not tried on the indictment returned by the Grand Jury, as is his constitutional right, and that trial on the amended indictment is constitutionally repugnant because there is no way of knowing whether the Grand Jury would have returned the indictment as amended if they had been given the opportunity.
Although the language and rationale of Bain are exceptionally broad, in the considerable time that has passed since Bain was decided, the courts have en-grafted several exceptions and limitations on this “no amendment rule,” foremost being that making corrections of typographical errors, or making changes that are “merely a matter of form,” are not constitutionally impermissible.
“In addition to the rule permitting amendment on matters of form, another ameliorating doctrine is the rule that a portion of an indictment that the evidence does not support may be withdrawn from the jury, and this is not an impermissible amendment, provided nothing is thereby added to the indictment, and that the remaining allegations charge an offense.” (C. Wright, 1 Federal Practice and Procedure 274-75 (1969).)
As is evident from the citations in notes 3 and 4, both of these exceptions now appear to be well considered and widely established law. However, in this Circuit, the implementation of the Fifth Amendment guarantee to a Grand Jury indictment has had a confusing and inconsistent history, prompting this Court in Heisler v. United States, 394 F.2d 692, at 695-96 (9th Cir.), cert. denied, 393 U.S. 986, 89 S.Ct. 463, 21 L.Ed.2d 448 (1968); to comment that the case law was “out of joint” and to despair that the conflicting precedents could ever be reconciled. In a few earlier cases this Circuit applied Bain in a draconian manner, prohibiting (in Carney v. United States, 163 F.2d 784 (9th Cir.), cert. denied, 332 U.S. 824, 68 S.Ct. 165, 92 L.Ed. 400 (1947)) even the change of an obvious typographical error. These cases however have been criticized (see C. Wright, 1 Federal Practice and Procedure 274 (1969)) and are inconsistent with the reforms in criminal pleading (cf. 8 Moore’s Federal Practice 17.05[3], 7-29 (1968)) which eliminate the fatal effects of defects which are merely formal or technical, and which in no way prejudice defendant or alter the essential nature of the indictment. In any event, the more recent decisions of this Court have clearly adopted and repeatedly invoked both of the aforementioned exceptions to Bain as the law of this Circuit.
Appellant calls our attention to Carney v. United States, supra, as contrary authority. First, we note that this Circuit has repeatedly, albeit technically, distinguished the rule in Carney and Stewart v. United States, 12 F.2d 524 (9th Cir. 1926); on the ground that these cases involved the actual and physical striking out of words on the face of the indictment. In the instant case no changes appear on physical embodiment of the indictment (C.T. 1, 2), and hence the instant case is distinguishable too. We thus need not in this case resolve the issue of whether this Circuit would overrule Carney or Stewart in a case where the alteration of non-essential language not affecting the substantial rights of the defendant actually appears on the face of the indictment. With respect to the vitality of Carney and Stewart in this Circuit, suffice it to note: (1) that this Court in Williamson v. United States, 262 F.2d 476 (9th Cir.), cert. denied, 359 U.S. 971, 79 S.Ct. 885, 3 L.Ed.2d 837 (1959); severely confines these cases, and its holding does everything but overrule them; (2) this Court has not in recent memory followed these holdings of these cases (only citing them to distinguish them); and (3) this Court has repeatedly allowed to be done in effect by a jury instruction, what Carney and Stewart would prohibit were it done to the face of the indictment.
Additionally, appellant cites our decision in Edgerton v. United States, 143 F.2d 697 (9th Cir. 1944); as endorsing a strict reading of Bain. We however view Edgerton as being consistent with the aforementioned exceptions to Bain. The court in Edgerton, after giving recognition to these exceptions, holds that the change there in question was not one of mere form, or the ignoring of an innocuous averment, but rather one affecting substance. The court went on to rule that such changes cannot be made by an instruction of the judge to the jury any more than they can be made by the actual physical alteration of the indictment. So construed, Edger- ton stands for the same principles as enunciated by the Supreme Court in Stirone v. United States, 361 U.S. 212, 214, 80 S.Ct. 270, 4 L.Ed.2d 252 (1959), and Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), viz: that the court may not by any means (e. g., physical alteration, jury instruction, or bill of particulars) alter the material and essential nature of an indictment or broaden the offense charged.
Turning now to the matter at hand, we must determine whether the instant case falls within one of the heretofore mentioned exceptions recognized by the modern trend of case law, or whether the jury instruction made below materially alters or broadens the offense charged in violation of the Fifth Amendment. We hold the instruction below was not constitutionally impermissible.
As the prosecution’s brief states, the captions of the two indictments are completely surplusage. The caption language adds to the clarity of the charge to the appellant’s benefit, but is not essential to the charge made. If the charge had read originally:
“.. defendant.. corruptly did... promise money to Earl Dawson, a witness before the United States District Court for the aforesaid District in cases pertaining to the burglary of the United California Bank in Laguna Niguel, California, on March 25 — 26, 1972 [... ] with intent to influence the testimony under oath of the said Earl Dawson as a witness at such trials and such hearings and other proceedings held in connection with the aforesaid cases,”
no reason to object to the indictment could have been successfully found by appellant.
It is clear to us that striking the surplusage to the superseding indictment as ordered by the trial court was nonprejudicial to Harold Dawson. At most, the judge’s instruction merely removed from the jury’s consideration a charge not supported by the evidence. In no way did it broaden or materially alter the essential nature of the offense charged. The superseding indictment, before and after the deletion by the court, still charged an offense, and still involved the same essential corrupt promise to pay money with intent to influence the testimony of a witness under oath “in cases pertaining to the burglary,” (C.T. 1, lines 21 & 22), and “as a witness at such trials and such hearings and other proceedings held in connection with the aforesaid cases.” (C.T. p. 1, line 28 to p. 2, line 2, inclusive.)
“The test of the sufficiency of an indictment is whether it (1) has all elements of the offense charged; (2) properly apprises defendant of what he must meet in preparation of his defense; and (3) enables him to plead double jeopardy in subsequent prosecutions. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932).”
United States v. Goodman, 457 F.2d 68, 73 (9th Cir.), cert. denied, 406 U.S. 961, 92 S.Ct. 2073, 32 L.Ed.2d 348 (1972).
In summary then, in the trial court’s instruction to the jury we find: no error, no prejudice to defendant, and no infringement of defendant’s Fifth Amendment right to a Grand Jury indictment.
II. Search and Seizure Issue.
We turn now to a consideration of the Fourth Amendment issue which has been raised, concerning the constitutionality of the seizure of a note written by appellant (Ex. 12), which was taken from him by a prison guard while appellant was confined in jail awaiting trial.
There is no question but that jail inmates have certain more definite and more readily ascertainable constitutional rights under recent court decision than previously recognized. Nevertheless, as defendant’s counsel concede, a prisoner in jail does not enjoy the same rights of privacy as do ordinary citizens in their homes or offices.
In Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962) the Supreme Court observed that a prisoner’s Fourth Amendment rights are extremely limited. As was stated in Lanza:
“... [T]o say that a public jail is the equivalent of a man’s ‘house’ or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument.... [Wjithout attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day.” (370 U.S. at 143, 82 S.Ct. at 1220.)
The district court denied defendant’s motion to suppress, ruling that defendant’s Fourth Amendment rights had not been violated by the seizure of the note in that Deputy Coffey had probable cause to believe that defendant was violating a prison regulation against communication among inmates, and was thereby entitled to seize and retain the subject note. (R.T. 171 — 73).
Appellant urges that the Government failed in its burden of proof to show that, in the absence of a warrant, the seizure of the note was reasonable, and appellant argues that the seizure was therefore violative of the Fourth Amendment. We disagree. We find no infringement of appellant’s Fourth Amendment rights.
Appellant at trial asserted this note was not a communication between prisoners, but was intended to be shown by appellant to his prospective visitor from “outside.” (That visitor was Viola Dinsio Barber.) But appellant, both in his testimony and in his affidavit filed in support of his Motion to Suppress, admits that he dropped the note onto the floor, that James Dinsio “another inmate. picked it up and handed it to me.” The guard asked for it, gave it back to appellant, and five minutes later again took it back, “claiming he felt it was Dinsio’s.”
Although appellant stated he had written the note, to ascertain the true fact the trial judge, exercising great care, ordered expert testimony as to (1) who actually wrote or hand printed the note, and (2) what the rules of the jail were.
Even if we were to accept appellant’s contention that he only was intending to communicate with his visitor, his actions made it appear that there was some communication between himself and another prisoner, and thus, establish probable cause.
In the case of United States v. Hitchcock, 467 F.2d 1107 (9th Cir. 1972), cert. denied, 410 U.S. 916, 93 S.Ct. 973, 35 L.Ed.2d 279 (1973), this Court (using the test of Katz v. United States, 389 U.S. 347 at 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) held that a prisoner has no reasonable expectation of privacy in his jail cell. We think the appellant in the instant case has an even less well founded claim to an invasion of a reasonable privacy interest in view of the fact that a prison rule forbade communication between prisoners, and the fact that signs in the prison emphasized the rule.
Appellant urges that the jail rules were unreasonable, and relies on United States v. Savage, 482 F.2d 1371, 1373 (9th Cir. 1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1446, 39 L.Ed.2d 491 (1973). In Savage, Judge Choy, relying on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), held that the copying of Savage’s letter to another convicted felon (confined in another prison) was : “absent a showing of some justifiable purpose of imprisonment or prison security,” (482 F.2d at 1373, emphasis added) violative of the Fourth Amendment.
Because no such showing by the Government had been made in the Savage case, the court held that while “the letter should have been excluded as evidence” — “the constitutional error was harmless beyond a reasonable doubt.” (Id.) That this reasoning was controlling is demonstrated by Note 1 in Savage. (Id.) Here the Government has made a sufficient showing of justifiable purpose in the prison rules and the guard’s action.
Nor'do we find the prison rule against communication at certain times and places between prisoners to be unreasonable. In this day of increased prison violence, the need to regulate prison life has become even more compelling than it previously was. Searches of prisoners’ cells (as in Hitchcock) may, at times be necessary for the protection of other prisoners as well as to prevent riot or escape; and to similar purpose is the rule here in question.
The relationship between legitimate prison interests and knowing what a prisoner is communicating to someone on the outside is a tangential one. Conse-' quently, this Court in Savage held, while such restrictions may be necessary in some cases to protect legitimate prison interests, they are not obviously so, and therefore require some further showing of justifiable prison purpose. However, the restrictions imposed in the Hitchcock case and the instant case are much more compelling, and the nexus between them and justifiable prison interests in maintaining security, much closer than that which faced this Court in Savage.
We find the regulation reasonable.
III. Self-Incrimination Issue.
Appellant also asserts that the seizure and admission of the note into evidence violates his Fifth Amendment rights, particularly in view of this Court’s original decision in VonderAhe v. Howland (9th Cir., March 26, 1973), unofficially published at 31 AFTR2d 73-1075 (1973). That opinion, however, was subsequently withdrawn by that panel and the case reconsidered. It was for this reason that this panel decided to await the final disposition of VonderAhe v. Howland, which was accomplished in VonderAhe v. Howland, 508 F.2d 364 (9th Cir., 1974). Under the “final” VonderAhe majority opinion, the court does not reach the Fifth Amendment issue, and therefore, the case can provide little solace to appellant and no support for his contentions.
Irrespective of VonderAhe, we note that this Court faced a similar issue in United States v. Murray, 492 F.2d 178 (9th Cir. 1973), cert. denied, 419 U.S. 942, 95 S.Ct. 210, 42 L.Ed.2d 166 (1974). We therein held that the admission of evidence lawfully seized from a defendant, even though “testimonial or communicative in nature” does not violate Fifth Amendment guarantees against self-incrimination. The court in Murray ruled:
“3. Seizure of address book.
Murray argues that the seizure and use in evidence of his address book and entries therein violated his Fifth Amendment privilege against self-incrimination. Murray relies primarily upon an observation by Justice Bradley in Boyd v. United States, 116 U.S. 616, 633, 6 S.Ct. 524, 29 L.Ed. 746 (1886), to the effect that the seizure of a person’s private books and papers to be used in evidence against him is not substantially different from compelling him to be a witness against himself.
Boyd involved a self-incrimination problem because the defendant was required by court order to produce a self-incriminating invoice. No.such circumstance is present here. Actual-. ly, Murray’s address book could have been seized as an instrumentality of the crime under the law as it existed prior to Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), which overturned the ‘mere evidence’ rule. Hayden, of course, liberalized the rule as to what items may be seized.
In Hayden, however, the court reserved the question of whether, in a search and seizure otherwise valid, the authorities could, in view of the privilege against self-incrimination, take items which are ‘testimonial’ or ‘communicative’ in nature. See Hayden, at 302-303, 87 S.Ct. 1642. But in United States v. Bennett, 409 F.2d 888, 896 (2d Cir. 1969), the Second Circuit held that such items can be taken during a lawful search and seizure and are admissible. We agree.
In Blackford v. United States, 247 F.2d 745, 753-754 (9th Cir. 1957), this court held that the privilege against self-incrimination protects one only against testimonial compulsion, and does not apply to real evidence taken from the person of the accused. The Second Circuit held to the same effect in Bennett. See also, United States v. Kee Ming Hsu, 424 F.2d 1286, 1290 (2d Cir. 1970). While Murray cites several other authorities in addition to Boyd, we find nothing therein which supports his position.
The address books were properly admitted in evidence.” (Id. at 191.)
In light of this Circuit’s decision in Murray and owing to the absence of a Fourth Amendment infringement, we do not find the admission of the note into evidence to be violative of appellant’s Fifth Amendment right not to be compelled to testify against himself.
Finding no impairment of appellant’s constitutional rights in the striking of surplusage from the indictment, or in either the seizure or admission of the note into evidence, and finding no prejudicial error or abuse of discretion in the admission of evidence or in the conduct of the trial to which appellant has called our attention,
we affirm.
. In Bain, the court was faced with the question of whether the striking of the italicized language from the portion of the indictment quoted below was an infringement of defendant’s Fifth Amendment right to a Grand Jury indictment:
“ ‘[Defendants] did then and there well know and believe the said report and statement to be false... and each of them, made said false statement and report with intent to deceive the comptroller of the currency and the agent [of the Comptroller of the Currency] appointed [by the Comptroller] to examine the affairs of said association... (121 U.S. at 4, 7 S.Ct. at 783.)
The court held the striking of the italicized language above was an amendment which violated defendant’s constitutional rights.
. “The learned judge who presided in the circuit court at the time the change was made in this indictment, says that the court allowed the words, ‘comptroller of the currency and,’ to be stricken out as surplusage, and required the defendant to plead to the indictment as it then read. The opinion which he rendered on the motion in arrest of judgment, referring to this branch of the case, rests the validity of the court’s action in permitting the change in the indictment upon the ground that the words stricken out were surplusage, and were not at all material to it, and that no injury was done to the prisoner by allowing such change to be made. He goes on to argue that the grand jury would have found the indictment without this language. But it is not for the court to say whether they would or not. The party can only be tried upon the indictment as found by such grand jury, and especially upon all its language found in the charging part of that instrument. While it may seem to the court, with its better instructed mind in regard to what the statute requires to be found as to the intent to deceive, that it was neither necessary nor reasonable that the grand jury should attach importance to the fact that it was the comptroller who was to be deceived, yet it is not impossible nor very improbable that the grand jury looked mainly to that officer as the party whom the prisoner intended to deceive by a report which was made upon his requisition and returned directly to him. As we have already seen, the statute requires these reports to be made to the comptroller at least five times a year, and the averment of the indictment is that this report was made and returned to that officer in response to his requisition for it. How can the court say that there may not have been more than one of the jurors who found this indictment, who was satisfied that the false report was made to deceive the comptroller, but was not convinced that it was made to deceive anybody else? And how can it be said, that, with these words stricken out, it is the indictment which was found by the grand jury? If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the constitution says ‘no person shall be held to answer,’ may be frittered away until its value is almost destroyed.” (121 U.S. at 9-10, 7 S.Ct. at 785.)
. See Russell v. United States, 369 U.S. 749, 761-63, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962):
“This underlying principle is reflected by the settled rule in the federal courts that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form. Ex parte Bain, 121 U.S. 1 [7 S.Ct. 781, 30 L.Ed. 849]; United States v. Norris, 281 U.S. 619 [50 S.Ct. 424, 74 L.Ed. 1076]; Stirone v. United States, 361 U.S. 212 [80 S.Ct. 270, 4 L.Ed.2d 252].” (Id. at 770, 82 S.Ct. at 1050);
and see, e. g., Stewart v. United States, 395 F.2d 484, 487-89 (8th Cir. 1968) (an amendment correcting typographical error as to the date of the offense, i. e., July 21, 1967 changed to June 21, 1967, not impermissible); Heisler v. United States, 394 F.2d 692 (9th Cir.), cert. denied, 393 U.S. 986, 89 S.Ct. 463, 21 L.Ed.2d 448 (1968) (court allows order correcting denomination of counterfeit Federal Reserve Note identified by serial number. Indictment alleged it was a $20.00 bill when in fact it was a $10.00 bill); Dye v. Sacks, 279 F.2d 834 (6th Cir. 1960) (correction of misdescription of victim’s name permissible); United States v. Denny, 165 F.2d 668 (7th Cir. 1947), cert. denied, 333 U.S. 844, 68 S.Ct. 662, 92 L.Ed. 1127 (1948) (court upholds correction of stenographic mistake which had resulted in the misspelling of defendant’s name in the second count of the indictment).
. See Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927) (indictment charged defendant with conspiring to violate a treaty in addition to several federal statutes. The trial court instructed the jury to ignore the treaty violation since the treaty created no criminal offense. The Supreme Court upheld the trial court ruling (at 602, 47 S.Ct. at 534) that “a useless averment [in an indictment] is innocuous and may be ignored,” and “that part of the indictment [which] is merely surplusage... may be rejected.”); Salinger v. United States, 272 U.S. 542, 47 S.Ct. 173, 71 L.Ed. 398 (1926) (the court in Salinger distinguishes Bain, and at 548-49, 47 S.Ct. at 175 holds:
“The contention that the court, by withdrawing from the jury a part of the charge as without support in the evidence, amended the indictment and thereby prevented it from longer serving as an accusation by a grand jury is on no better plane than [petitioner’s
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America, Plaintiff-Appellee, v. Samuel E. MUSE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anthony R. WEST, Defendant-Appellant.
Nos. 81-2436, 81-2523.
United States Court of Appeals, Tenth Circuit.
May 17, 1983.
Vernon E. Lewis, Asst. U.S. Atty., and Jim J. Marquez, U.S. Atty., Kansas City, Kan., with him on brief, for plaintiff-appel-lee.
David J. Phillips, Asst. Federal Public Defender, and Charles D. Anderson, Federal Public Defender, Ira R. Kirkendoll, Asst. Federal Public Defender, and Robert M. Isenberger, Kansas City, Kan., with him on brief, for defendants-appellants.
Before DOYLE and McKAY, Circuit Judges, and BROWN , Senior District Judge.
Hon. Wesley E. Brown, Senior District Judge for the District of Kansas, is sitting by designation.
WESLEY E. BROWN, Senior District Judge.
These appeals were taken by defendants after their joint trial and conviction by a jury of one count of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. i 2. Defendants submitted a joint brief, raising three issues. The facts shown by the evidence at trial are not in dispute.
The first issue raised by defendants is whether they were denied a fair trial by the government’s failure to produce the confidential informant for interview by defense counsel. On September 28, 1981, the trial court granted defendant’s pre-trial motion for disclosure of the identity of the confidential informant. In its order, the court stated that the government was to disclose the identity of the informant one week prior to trial and was to make the informant available to the defendants the morning of trial. Before trial commenced on October 28, 1981, the government announced to the court that the confidential informant was Michael Scheetz, and that it was unable to produce him for interview by defendant counsel. Mr. Scheetz had been in the witness protection program, but the Assistant United States Attorney learned approximately two weeks before trial that Scheetz had been released from that program. The prosecutor explained that Scheetz had been maintaining contact with the Drug Enforcement Administration, that he had spoken with Scheetz the previous Friday, October 23, 1981, and that Scheetz at that time had indicated his willingness to appear at trial. Scheetz also said he was going to Las Vegas, and would check with the United States Marshal’s office there for a subpoena. The prosecutor had the Marshal’s Service serve a subpoena in Kansas City, which was sent by Telex to the Marshal’s office in Las Vegas.
On Monday, October 26, 1981, the prosecutor learned that Scheetz had not gone to Las Vegas, but rather had returned to Scranton, Pennsylvania, where he supposedly could be contacted. The prosecutor telephoned the Marshal’s Service in Scranton several times the next day, October 27, 1981, and was informed that they had been in contact with Scheetz. Scheetz apparently gave a pay phone as the number where he could be reached, but had left that location when the prosecutor attempted to call him at that number. The Marshal’s Service was never able to serve Scheetz with the subpoena, which remained outstanding, despite efforts to locate Scheetz until approximately 9:00 p.m. the night before trial.
We start with the principle that the government’s refusal to disclose the identity of a confidential informant may violate a defendant’s due process rights. Gaines v. Hess, 662 F.2d 1364 (10 Cir.1981). Of course, the question before us is not disclosure, because the identity of the informant was disclosed. Instead, the first aspect of this issue to be resolved is whether defendants were denied due process by the failure of the government to produce the informant for interview, as ordered by the trial court. The government must use reasonable efforts to produce an informant so that a defendant may interview him or use him as a witness, but it is not the guarantor of an informant’s presence at trial. United States v. Hart, 546 F.2d 798 (9 Cir.1976), en banc, cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 571 (1977); United States v. Hayes, 477 F.2d 868 (10 Cir.1973).
It is clear from the trial court’s ruling that it accepted the government’s statements as to its efforts to locate and produce the informant, and found them reasonable. We agree with this assessment. As the majority of the en banc Court held in Hart, supra, there was no reason to anticipate or suspect that the informant would fail to appear. Until Scheetz failed to go to Las Vegas as he said he would, he had maintained contact with the Drug Enforcement Administration [DEA] and had told the Assistant United States Attorney that he would be present at trial. On Monday, October 26,1981, after the Assistant United States Attorney discovered Scheetz had not been served with a subpoena in Las Vegas, he actively tried to locate Scheetz in the less than two days remaining before trial. The Marshal’s Service, however, was simply unable to find Scheetz. Under the circumstances recited above, we conclude that the government used reasonable efforts to produce Scheetz as soon as it knew that his appearance was doubtful or problematic, which is all that is required of it.
The second aspect of the failure to produce Scheetz is whether the trial court erred in denying the defense motion for a continuance until Scheetz could be located and interviewed. It has been held without additional justification that where the government has made a reasonable effort to locate and produce the informant, the trial court does not abuse its discretion in denying a continuance. United States v. Gonzalez, 582 F.2d 991 (5 Cir.1978); Hart, supra. Thus, neither Gonzalez nor Hart treated denial of a continuance as a separate question. Even if it is considered as one, we hold there was no error in denying a continuance here. Where the government has been unsuccessful in locating the informant despite its reasonable efforts, there is nothing more to be achieved by a continuance unless there is some reasonable possibility that the defendants could find the informant themselves. Here as in Gonzalez, there was no reason to believe that defendants could find the informant in the foreseeable future.
A second issue asserted by defendants is that the trial court erred in refusing to give defendant Muse’s requested instruction on his theory of defense. The jury was instructed that defendants’ “not guilty” pleas put in issue every material ingredient of the crime charged, and made it incumbent upon the United States to establish by the evidence, to the jury’s satisfaction beyond a reasonable doubt, every material allegation of the offense charged. This is in substance, of course, the first paragraph of defendant’s request. The instruction as to elements of the offense was:
“You are instructed that the elements of the offense charged in the indictment are as follows:
First: That on or about February 17, 1981, in the District of Kansas, the defendants did distribute the controlled substance described;
Second: That said substance was cocaine;
Third: That the acts of said defendants were done knowingly and intentionally.”
The trial court found that the requested instruction set out in Footnote 2 was adequately covered by other instructions given, and we agree. The requested instruction, particularly the last three numbered paragraphs, was merely a statement of the essential elements in the negative. Thus, it was repetitious of the instruction stating the effect of the “not guilty” plea. The first numbered paragraph, embodying the defense of mistaken identity, was likewise unnecessary. It is obvious that the court’s instructions required the jury to find beyond a reasonable doubt that the defendants, not some other person, committed the offense. The trial court’s refusal to give defendant Muse’s instruction in the form he requested did not deprive either defendant of a fair trial.
The final issue presented by these appeals concerns the government’s failure to provide certain material which the defendants contend was discoverable. Defendants’ first complaint in this regard is a failure by the government to supply an updated or current “rap sheet” for the informant Scheetz. As defendants recognize in their brief, this matter is rendered moot by the fact that Scheetz did not testify at trial, and was therefore not subject to cross-examination or impeachment.
In the other related assignment of error, defendants contend that the trial court erred in denying defendant Muse’s motion for “access to the government personnel files of government agents David Cigich, Edward King, F.B.I. forensic chemist Ronald J. Wagenhofer” and others. Defendants cite Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) as support for their contention that they were entitled to inspect government employees’ personnel files. Brady held that “the 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...” 373 U.S. at 87, 83 S.Ct. at 1196, 10 L.Ed.2d at 218. In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), one Assistant United States Attorney stated in a post-conviction affidavit that he had promised the co-conspirator he would not be prosecuted if he testified for the government against the defendant. This newly discovered evidence, presented in support of Giglio’s motion for new trial, was contrary to statements by the Assistant United States Attorney who tried the case, and the co-conspirator’s trial testimony. The Supreme Court found that the co-conspirator’s “credibility as a witness was ... an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.” Giglio, supra, 405 U.S. at 155, 92 S.Ct. at 766, 31 L.Ed.2d at 109. As a result, it was held in that case that due process required a new trial.
The Fifth Circuit had occasion to apply Brady and Giglio, supra, in United States v. Deutsch, 475 F.2d 55 (5 Cir.1973), a bribery case involving a defendant’s right to review the personnel file of the government employee who testified against him. In Deutsch, defendants moved for production of postal employee Morrison’s personnel file, for “ ‘insight into the character of said prospective witness.’ ” 475 F.2d at 57. The government sought to avoid production claiming that the Post Office was not an “arm of the prosecution” and that the United States Attorney’s office did not have Morrison’s personnel file. The Deutsch Court held that where Morrison was the “government’s whole case,” Brady required the government to produce his personnel file if it contained evidence useful to defendants for impeachment purposes, regardless of the fact that Morrison was employed by a different “arm” of the government. Deutsch recognized that a new trial was required only if defendants were deprived of something of value, and so remanded the case to the district court for examination of the personnel file to determine whether it would have afforded useful cross-examination.
We agree with the statement in Deutsch that the government must supply evidence useful to the defendant simply for impeachment purposes. However, in contrast to Deutsch, we hold that a remand is not necessary on the facts presented here. Unlike this case, Deutsch apparently involved a single request for production of the personnel file in question. In the instant case, defendant Muse made three specific requests and one general request for disclosure of evidence useful for impeachment, all of which were granted by the trial court. These asked for disclosure of: (1) all prior felony convictions and juvenile adjudications of any government witness; (2) all considerations, promises, and beneficial treatment given to government witnesses or government employees in connection with the prosecution; (3) all evidence showing “bad acts” of government witnesses; and (4) any and all other materials which would be favorable to the accused or discrediting to the government’s case. The government contends that the further request for access to personnel files, the only discovery denied by the trial court, was “a fishing expedition.” Whether it was that or not, the section of defendant Muse’s motion requesting personnel files was certainly overly broad and in our view superfluous, considering the granted portions of Muse’s motion. Defendants do not claim that the government failed to produce any materials pursuant to the requests summarized above. We think these requests, granted by the trial court, were quite thorough in seeking “evidence useful to the defendant(s) simply for impeachment purposes,” Deutsch, 475 F.2d at 57, whether such evidence was contained in personnel files or elsewhere. It is to be kept in mind that it was such evidence defendants were entitled to, not the personnel files as such. The trial court’s refusal to order production of the personnel files was not error, because the court did in fact order production of all material favorable or useful to the defense.
We find no error, and the judgments appealed from are therefore AFFIRMED.
. It does not appear that Scheetz was trying to avoid the subpoena even when he went to Scranton instead of Las Vegas, since he contacted the Marshal’s Service to leave a telephone number in Scranton.
. The instruction requested by defendant Muse was as follows:
“Defendant Muse has pleaded ‘not guilty’ to the charge contained in the indictment. This plea puts in issue each of the essential elements of the offense as described in these instructions, and imposes on the government the burden of establishing each of these elements by proof beyond reasonable doubt.
Defendant Sam Muse’s theory of defense is:
(1) That Defendant Muse has not been identified beyond a reasonable doubt as being present on February 17, 1981, in Kansas City, Kansas at the scene of the alleged transaction;
(2) That it has not been established beyond a reasonable doubt that Defendant Muse possessed cocaine;
(3) That it has not been established beyond a reasonable doubt that Defendant Muse knowingly and intentionally distributed cocaine;
(4) That it has not been established beyond a reasonable doubt that the substance in question on February 17, 1981 was illegal cocaine.”
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_issue_1
|
02
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
PLILER, WARDEN v. FORD
No. 03-221.
Argued April 26, 2004 —
Decided June 21, 2004
Paul M. Roadarmel, Jr., Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Donald E. De Nicola, Deputy Attorney General, and Kenneth C. Byrne, Supervising Deputy Attorney General.
Lisa M. Bassis, by appointment of the Court, 540 U. S. 1216, argued the cause and filed a brief for respondent.
Briefs of amici curiae urging affirmance were filed for Federal Defenders in the Ninth Circuit by Maria E. Stratton, Mark R. Drozdowski, Frederic F. Kay, Quin A. Denvir, Barry J. Portman, Peter C. Wolff, Jr., Anthony R. Gallagher, Roger Peven, and Thomas W. Hillier II; and for the National Association of Criminal Defense Lawyers by Walter Dellinger, Pamela Harris, and David M. Porter.
Justice Thomas
delivered the opinion of the Court.
Under Rose v. Lundy, 455 U. S. 509 (1982), federal district courts must dismiss “mixed” habeas corpus petitions — those containing both unexhausted and exhausted claims. In this case, we decide whether the District Court erred by dismissing, pursuant to Rose, a pro se habeas petitioner’s two habeas petitions without giving him two particular advisements. Because we hold that the District Court’s failure to provide these warnings did not make the dismissals improper, we need not address the second question presented, whether respondent’s subsequent untimely petitions relate back to his “improperly dismissed” initial petitions.
I
On April 19, 1997, five days before his 1-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, would have run, respondent signed and delivered to prison authorities two pro se federal habeas corpus petitions. The first petition related to respondent’s conviction for, among other things, conspiring to murder John Loguercio and attempting to murder Loguercio’s wife; the second related to his conviction for the first-degree murder and conspiracy to commit the murder of Thomas Weed. Because the petitions contained unexhausted claims, respondent also filed motions to stay the petitions so that he could return to state court to exhaust the unexhausted claims. The Magistrate Judge gave respondent three options: (1) The petitions could be dismissed without prejudice and respondent could refile after exhausting the unexhausted claims; (2) the unexhausted claims could be dismissed and respondent could proceed with only the exhausted claims; or (3) respondent could contest the Magistrate Judge’s finding that some of the claims had not been exhausted. App. 51-52; 81-82.
With respect to his petition in the Loguercio case, respondent chose the first option. With respect to the Weed case, respondent failed to respond to the Magistrate Judge. The District Court dismissed respondent’s petitions without prejudice. In both cases, respondent proceeded by filing ha-beas corpus petitions in the California Supreme Court, which were both summarily denied. Respondent subsequently refilled his pro se habeas petitions in Federal District Court. The District Court, in both cases, dismissed the petitions with prejudice as untimely under AEDPA’s 1-year statute of limitations, 28 U. S. C. § 2244(d), and denied respondent’s motions for a certificate of appealability (COA). The Ninth Circuit consolidated respondent’s motions for a COA, and then granted a COA on the question whether his federal ha-beas petitions were timely under § 2244(d). A divided panel concluded that both of respondent’s initial federal habeas petitions were timely filed and held that his later petitions related back to the initial petitions. Ford v. Hubbard, 330 F. 3d 1086, 1097 (2003).
Although the District Court correctly concluded that it did not have discretion to stay respondent’s mixed petitions, see Rose, supra, at 522, the Ninth Circuit determined that the District Court could have acted on the stay motions if respondent had chosen the Magistrate Judge’s second option— dismissal of the unexhausted claims — and then renewed the prematurely filed stay motions. Under the Ninth Circuit’s view, the District Court was obligated to advise respondent that it could consider his stay motions only if he chose this route. 330 F. 3d, at 1099. The District Court’s failure to inform respondent was, according to the Court of Appeals, prejudicial error because it deprived respondent of a “fair and informed opportunity to have his stay motions heard, to exhaust his unexhausted claims, and ultimately to have his claims considered on the merits.” Id., at 1100.
The District Court also committed prejudicial error, according to the Ninth Circuit, for failing to inform respondent that AEDPA’s 1-year statute of limitations had run on both of his petitions and that, consequently, he would be barred from refiling his petitions in federal court if he failed to amend them or if he chose to dismiss the petitions without prejudice in order to exhaust the unexhausted claims. Under the Court of Appeals’ view, the District Court “definitively, although not intentionally,” misled respondent by telling him that if he chose the first option, the dismissal would be without prejudice. Ibid. The Court of Appeals concluded that respondent should have been told that, because AEDPA’s statute of limitations had run with respect to his claims, a dismissal without prejudice would effectively result in a dismissal with prejudice unless equitable tolling applied. Id., at 1101. According to the Court of Appeals, the District Court’s error in this regard deprived respondent of the opportunity to make a “meaningful” choice between the two options. Id., at 1102. We granted certiorari, 540 U. S. 1099 (2004).
II
Under Rose, federal district courts must dismiss mixed habeas petitions. 455 U. S., at 510, 522. Subsequent to the Court’s decision in Rose, Congress enacted AEDPA, which imposed a 1-year statute of limitations for filing a federal habeas corpus petition. See 28 U. S. C. § 2244(d)(1). The combined effect of Rose and AEDPA’s limitations period is that if a petitioner comes to federal court with a mixed petition toward the end of the limitations period, a dismissal of his mixed petition could result in the loss of all of his claims — including those already exhausted — because the limitations period could expire during the time a petitioner returns to state court to exhaust his unexhausted claims. To address this, the Ninth Circuit has held that a district court may employ a stay-and-abeyance procedure. See Calderon v. United States Dist. Court for Northern Dist. of Cal. ex rel. Taylor, 134 F. 3d 981, 988 (1998). The stay-and-abeyance procedure involves three steps: first, dismissal of any unexhausted claims from the original mixed habeas petition; second, a stay of the remaining claims, pending exhaustion of the dismissed unexhausted claims in state court; and third, amendment of the original petition to add the newly exhausted claims that then relate back to the original petition. Id., at 986.
In this case, the Ninth Circuit held that if a pro se prisoner files a mixed petition, the district court must give two specific warnings regarding the stay-and-abeyance procedure: first, that “it would not have the power to consider [a prisoner’s] motions to stay the [mixed] petitions unless he opted to amend them and dismiss the then-unexhausted claims,” 330 F. 3d, at 1092-1093, and, second, if applicable, “that [a prisoner’s] federal claims would be time-barred, absent cause for equitable tolling, upon his return to federal court if he opted to dismiss the petitions ‘without prejudice’ and return to state eourt to exhaust all of his claims,” id., at 1093.
Without addressing the propriety of this stay-and-abeyance procedure, we hold that federal district judges are not required to give pro se litigants these two warnings. District judges have no obligation to act as counsel or paralegal to pro se litigants. In McKaskle v. Wiggins, 465 U. S. 168, 183-184 (1984), the Court stated that “[a] defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure” and that “the Constitution [does not] require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course.” See also Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U. S. 152, 162 (2000) (“[T]he trial judge is under no duty to provide personal instruction on courtroom procedure or to perform any legal ‘chores’ for the defendant that counsel would normally carry out”). Explaining the details of federal habeas procedure and calculating statutes of limitations are tasks normally and properly performed by trained counsel as a matter of course. Requiring district courts to advise a pro se litigant in such a manner would undermine district judges’ role as impartial decisionmakers. And, to the extent that respondent is concerned with a district court’s potential to mislead pro se habeas petitioners, the warnings respondent advocates run the risk of being misleading themselves.
Specifically, the first warning could encourage the use of stay-and-abeyance when it is not in the petitioner’s best interest to pursue such a course. This could be the case, for example, where the petitioner’s unexhausted claims are particularly weak and petitioner would therefore be better off proceeding only with his exhausted claims. And it is certainly the case that not every litigant seeks to maximize judicial process.
The second advisement would force upon district judges the potentially burdensome, time-consuming, and fact-intensive task of making a case-specific investigation and calculation of whether the AEDPA limitations period has already run or will have run by the time the petitioner returns to federal court. As the dissent below recognized, district judges often will not be able to make these calculations based solely on the face of habeas petitions. 330 F. 3d, at 1108. Such calculations depend upon information contained in documents that do not necessarily accompany the petitions. This is so because petitioners are not required by 28 U. S. C. §2254 or the Rules Governing §2254 Cases to attach to their petitions, or to file separately, state-court records. See 1 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure § 15.2c, p. 711 (4th ed. 2001) (“Most petitioners do not have the ability to submit the record with the petition, and the statute and rules relieve them of any obligation to do so and require the state to furnish the record with the answer”). District judges, thus, might err in their calculation of the statute of limitations and affirmatively misinform pro se petitioners of their options.
Respondent nevertheless argues that the advisements are necessary to ensure that pro se petitioners make informed decisions and do not unknowingly forfeit rights. Brief for Respondent 27-32. Respondent reads Rose as mandating that “a prisoner be given ‘the choice of returning to state court to exhaust his claims or amending or resubmitting the habeas petition to present only exhausted claims to the district court.’ ” Brief for Respondent 25-26, 27 (quoting Rose, 455 U. S., at 510) (emphasis in brief). But Rose requires only that “a district court must dismiss ... ‘mixed petitions,’ leaving the prisoner with the choice” described above. Ibid. In other words, Rose requires dismissal of mixed petitions, which, as a practical matter, means that the prisoner must follow one of the two paths outlined in Rose if he wants to proceed with his federal habeas petition. But nothing in Rose requires that both of these options be equally attractive, much less suggests that district judges give specific advisements as to the availability and wisdom of these options. As such, any advisement of this additional option would not “simply implement what this Court already requires.” Brief for Respondent 27 (emphasis in original).
Respondent also relies heavily upon Castro v. United States, 540 U. S. 375 (2003). In Castro, we held that a federal district court cannot sua sponte recharacterize a pro se litigant’s motion as a first §2255 motion unless it informs the litigant of the consequences of the recharacterization, thereby giving the litigant the opportunity to contest the recharacterization, or to withdraw or amend the motion. Id., at 377. Castro dealt with a District Court, of its own volition, taking away a petitioner’s desired route — namely, a Federal Rule of Criminal Procedure 33 motion — and transforming it, against his will, into a §2255 motion. Cf. id., at 386 (Scalia, J., concurring in part and concurring in judgment) (“Recharacterization ... requires a court deliberately to override the pro se litigant’s choice of procedural vehicle for his claim”). We recognized that although this practice is often used to help pro se petitioners, it could also harm them. Id., at 381-382. Because of these competing considerations, we reasoned that the warning would “help the pro se litigant understand . . . whether he should withdraw or amend his motion [and] whether he should contest the recharacterization.” Id., at 384 (emphasis in original). Castro, then, did not address the question whether a district court is required to explain to a pro se litigant his options before a voluntary dismissal and its reasoning sheds no light on the question we confront.
Therefore, we hold that district courts are not required to give the particular advisements required by the Ninth Circuit before dismissing a pro se petitioner’s mixed habeas petition under Rose. We remand the case for further proceedings given the Court of Appeals’ concern that respondent had been affirmatively misled quite apart from the District Court’s failure to give the two warnings.
For the foregoing reasons, 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.
Finding it impossible to put respondent in the position he had occupied prior to the District Court’s “erroneous dismissal” of his initial petitions, the Ninth Circuit concluded that Federal Rule of Civil Procedure 15(c)’s amendment procedures apply to “ensure that {respondent’s] rights are not unduly prejudiced as a result of the district court’s errors.” 330 F. 3d, at 1102. Accordingly, it held that “a pro se habeas petitioner who files a mixed petition that is improperly dismissed by the district court, and who then . . . returns to state court to exhaust his unexhausted claims and subsequently re-files a second petition without unreasonable delay,” may have his second petition relate back to the initial timely petition. Ibid. As explained above, we need not address whether the Ninth Circuit’s decision on this ground was correct.
There is one circumstance where nonindigent petitioners must furnish the court with portions of the record. See 28 U. S. C. § 2254(f) (“If the applicant challenges the sufficiency of the evidence .. to support the State court’s determination of a factual issue ... , the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence”; “[i]f the applicant, because of indigency or other reason is unable to produce such part of the record,” a court must direct the State to produce it).
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
|
songer_const1
|
114
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
LEE COUNTY BRANCH OF the NAACP, et al., Plaintiffs-Appellants, v. The CITY OF OPELIKA, et al., Defendants-Appellees.
No. 83-7275.
United States Court of Appeals, Eleventh Circuit.
Dec. 17, 1984.
James C. Hill, Circuit Judge, filed specially concurring opinion.
Stephen J. Ellmann, Ira A. Burnim, Montgomery, Ala., for plaintiffs-appellants.
Guy F. Gunter, III, Opelika, Ala., Thomas S. Lawson, Jr., Montgomery, Ala., for defendants-appellees.
Before HILL and HENDERSON, Circuit Judges, and WISDOM, Senior Circuit Judge.
Honorable John Minor Wisdom, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
. The plaintiffs attempted to conduct a study of voting registration by race just before trial. The study was never completed, and experts presented by both sides agreed that the data produced by the plaintiffs' incomplete study were unreliable.
WISDOM, Senior Circuit Judge:
The plaintiffs in this case allege that the at-large scheme for electing the municipal government for the city of Opelika, Alabama violates the Fourteenth and Fifteenth Amendments and section 2 of the Voting Rights Act of 1965, as amended, 42 U.S. C.A. § 1973 (West Supp.1984). The case was tried under the law as pronounced in Nevett v. Sides, 5 Cir.1978, 571 F.2d 209, cert. denied, 1980, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807. After trial but before the district court had issued its decision in this case, the Supreme Court issued two decisions affecting the standard of proof in constitutional discrimination cases. Rogers v. Lodge, 1982, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012; City of Mobile v. Bolden, 1980, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47. Moreover, in 1982 Congress amended section 2 of the Voting Rights Act, in effect overruling Mobile and restoring the legal standard in the Fifth and Eleventh Circuits governing voter discrimination decisions before that case was decided. The district court deferred its ruling pending the decision in Mobile, then issued an opinion denying relief to the plaintiffs under the principles stated in that ease. In a later brief opinion, the court denied the plaintiffs’ motion to alter or amend the judgment, or for a new trial, and held that the plaintiffs were not entitled to relief under either section 2 of the Voting Rights Act or under the factors enumerated by the Supreme Court in Rogers. While this case was on appeal, two decisions were issued that affect our disposition of this ease. In Escambia County v. McMillan, 1984, — U.S. —, 104 S.Ct. 1577, 80 L.Ed.2d 36, the Supreme Court vacated a finding that an at-large election scheme violated the Fourteenth Amendment and remanded the case for consideration of whether the scheme was unlawful under section 2 of the Voting Rights Act. In United States v. Marengo County Commission, 11 Cir.1984, 731 F.2d 1546, this Court explained in detail how the “results” test of section 2 is to be applied to an allegation that an at-large system unlawfully dilutes minority votes.
We hold that Escambia requires that the plaintiffs’ section 2 claim be decided first and that Marengo sets forth the legal standard governing that claim. We remand this case to the district court to allow the parties an opportunity to update the record and to present evidence on the question whether Opelika city elections have exhibited racially polarized voting, a key consideration under the Marengo standard.
I. FACTS
Opelika, Alabama is a city of approximately 22,000, of which about 31 percent are black. The city is governed by a three-person commission whose members are elected at-large for a three-year term. The elections are staggered; one new commissioner is elected each summer. If no candidate receives a majority of votes, the two candidates receiving the most votes participate in a run-off election. After each election, the city commissioners select from among themselves a president who serves as mayor.
Although pervasive de jure discrimination in Opelika ended in about 1970, residential patterns in the city at the time of trial were segregated. As of 1978, Opelika was divided into six voting wards or “boxes”. Witnesses at trial testified that the majority of the population in boxes 1, 2, and 6 were white and the majority of those in boxes 3 and 5 were black. The remaining box was generally considered a “white” box. There was no direct evidence in the record of voter registration by race in Opelika. The plaintiffs introduced evidence suggesting that a disparity existed between levels of voter registration among blacks and whites.
No black has ever been elected to Opeli-ka’s city commission. On five occasions between 1969 and 1978, a black candidate ran for and lost election to the commission. In 1970, no blacks were employed by the city in either managerial or clerical positions. In 1978, three of thirty-three clerical positions were filled by blacks. Three of the eleven administrative positions with the City Water Works Board and four of the forty-four city managerial positions were filled by blacks. Since 1972 the Opelika school system has been fully integrated at a ratio of approximately 60 percent white and 40 percent black in each school throughout the system.
On January 25, 1978, the Lee County Branch of the NAACP, the Lee County Voters League, and several of the members of these organizations filed suit against the City of Opelika and the three members of its city commission, alleging that the at-large commission form of government impermissibly dilutes the votes of black citizens in violation of the Fourteenth and Fifteenth Amendments and section 2 of the Voting Rights Act, as amended, 42 U.S.C. § 1973 (1976). The case was tried before the district court in the summer of 1978 under the law as set forth in Nevett v. Sides, 5 Cir.1978, 571 F.2d 209, cert. denied, 1980, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807. Nevett held that a claim of unconstitutional voting dilution could be established by proof of the factors outlined in Zimmer v. McKeithen, 5 Cir. 1973, 485 F.2d 1297 (en banc), aff'd per curiam sub nom. East Carroll Parish School Board v. Marshall, 1976, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296. Proof of these factors “raises an inference of intentional discrimination”. Nevett, 571 F.2d at 225. The focus of the evidence at trial was on the two Zimmer factors that the Nevett Court stated were of special relevance in voting dilution cases — whether the plaintiffs had access to the political process and whether government officials were responsive to the interests of the plaintiff racial group. Nevett, 571 F.2d at 223 n. 19.
After trial, but before a decision in this case had been rendered, the Supreme Court decided City of Mobile v. Bolden, 1980, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47. A plurality of the Court held that intentional discrimination must be shown to establish a claim of unconstitutional voting dilution. The plurality rejected the holding of Nevett that proof of an aggregate of the Zimmer factors is sufficient to establish such a claim. 446 U.S. at 73, 100 S.Ct. at 1502-1503. Five justices in Mobile also ruled that section 2 of the Voting Rights Act incorporates the constitutional intent standard. Id. at 60-61, 105 n. 2, 100 S.Ct. at 1495-1496, 1520 n. 2. After the decision in Mobile, the plaintiffs moved to reopen the record in this case to submit evidence bearing more directly upon intent. The district court denied the plaintiffs’ offers of additional evidence.
In August 1982, the district court issued a memorandum opinion denying the plaintiffs’ relief. Memorandum Opinion, M.D. Ala. Aug. 31, 1982, Record at 273. The court concluded that the Zimmer factors are relevant to a showing of discriminatory purpose under Mobile, although Mobile made proof of those factors alone insufficient to establish the necessary intent. The court ruled that the plaintiffs had “not proved by a preponderance of the evidence the existence of an aggregate of the factors which the Zimmer Court said would make out ‘a strong case’ ”. Record at 308. The court’s opinion emphasized evidence that Opelika’s government had been responsive to black needs and that all formal barriers to black political participation had been eliminated.
The court’s opinion made no mention either of Rogers v. Lodge, 1982, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 — decided two months before the district court issued its opinion — or of the Voting Rights Act Amendments of 1982, P.L. No. 97-205, 96 Stat. 131 (codified at 42 U.S.C. §§ 1971— 1974e), effective June 29, 1982. Rogers confirmed the vitality of the Zimmer factors and held that these factors can be used to support an inference of intentional discrimination. Rogers, 458 U.S. at 620-22, 624, 102 S.Ct. at 3277-78, 3279. The 1982 Amendments changed section 2 of the Voting Rights Act to prohibit any practice or procedure “imposed or applied... in a manner which results in a denial or abridgement of the right... to vote on account of race or color....” 42 U.S.C.A. § 1973(a) (West Supp.1984) (emphasis added). The statute further provides:
A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice! The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
42 U.S.C.A. § 1973(b) (West Supp.1984).
On September 10, 1982, the plaintiffs moved to amend the judgment or for a new trial in the light of Rogers and amended section 2. They also asserted that Rogers reflected a renewed emphasis on certain evidentiary factors outlined in Zimmer that would further support their right to relief. In March 1983, the district court denied the plaintiffs’ motion. The court entered no detailed findings of fact or conclusions of law. Its three-paragraph opinion concluded that
(1) the preponderance of the evidence showing facts alleged and proved in this case do not indicate a violation of 42 U.S.C. § 1973 as last amended or of the Constitution and (2) the Opinion in this case is inclusive of the primary factors discussed in Rogers and Rogers supplies neither legal nor factual reasons to alter or amend the judgment entered in this case on August 31, 1982.
Record at 322-23. The plaintiffs appealed from the denial of their motion to alter or amend, or for a new trial, and from the district court’s original judgment of August 1982.
II. THE SECTION 2 CLAIM SHOULD BE ADJUDICATED FIRST
Although the plaintiffs filed claims under both the Fourteenth and Fifteenth Amendments and section 2 of the Voting Rights Act, the case was tried in the district court primarily in constitutional terms under the intent standard set forth in Nevett v. Sides, 5 Cir.1978, 571 F.2d 209, cert. denied, 1980, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807.
There was relatively little judicial interpretation of the scope of section 2 in the reported decisions before the Supreme Court’s Mobile decision in 1980. The Voting Rights Act Amendments of 1982, however, made it clear that the “results” standard under section 2 was intended to replace the “intent” standard of Mobile. The proof of a section 2 violation, therefore, is different from the proof of a claim of unconstitutional voting dilution.
A recent Supreme Court case, decided while this case was on appeal, requires that the plaintiffs’ statutory claim be adjudicated first. In Escambia County v. McMillan, 1984, — U.S. —, 104 S.Ct. 1577, 80 L.Ed.2d 36 (per curiam), the Court vacated a finding that an at-large election scheme violated the Fourteenth Amendment and remanded the case for consideration of whether the scheme was unlawful under section 2 of the Voting Rights Act. The district court had ruled that the at-large scheme was unconstitutional because it had been maintained for discriminatory purposes. The Fifth Circuit affirmed on the standards set forth in Rogers v. Lodge, 1982, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012. McMillan v. Escambia County, 5 Cir.1982, 688 F.2d 960. Although the Fifth Circuit’s opinion was issued after section 2 was amended, the Court declined to reconsider the case under the statute because further delay in county elections would cause great hardship and because a decision of the issues raised under section 2 would not affect the outcome of the. case, for the plaintiffs were entitled to relief on their Fourteenth Amendment claim. 688 F.2d at 961 n. 2.
Notwithstanding the Fifth Circuit’s explanation for its refusal to decide the plaintiffs’ section 2 claim, the Supreme Court vacated the judgment and remanded on the premise that “the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.” Escambia, — U.S. at —, 104 5. Ct. at 1579, 80 L.Ed.2d at 39. We hold that Escambia dictates that the plaintiffs’ section 2 claim should have been adjudicated first. A finding of liability under section 2 would obviate the necessity to decide the plaintiffs’ Fourteenth and Fifteenth Amendment claims. The defendants urge us to decide the plaintiffs’ section 2 claim based on the record before us. The plaintiffs insist that we should remand the case for an evidentiary hearing under section 2. We turn now to the question whether this case should be remanded to the district court for further proceedings concerning the plaintiffs’ section 2 claim.
III. SHOULD THIS CASE BE REMANDED FOR FURTHER PROCEEDINGS ON THE SECTION 2 CLAIM?
While this case was on appeal, this Court decided United States v. Marengo County Commission, 11 Cir.1984, 731 F.2d 1546. Marengo explains in detail how the “results” test of section 2 is to be applied to an allegation that an at-large system unlawfully dilutes minority votes. Discriminatory intent need not be shown to establish a violation. Section 2 focuses “on whether minorities have an equal right to participate in the political process.” Id. at 1565. A denial of equal participation may be demonstrated by proof of various objective factors, many of which are those outlined in Zimmer v. McKeithen, 5 Cir.1973, 485 F.2d 1297 (en banc), aff'd per curiam sub nom. East Carroll Parish School Board v. Marshall, 1976, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296. These factors include the existence of racially polarized voting; past discrimination and its lingering effects; access to the slating process; election practices that exacerbate the deficiencies in minority participation in the political process; elections characterized by racial appeals; tenuousness of state policies underlying the at-large elections; success of minority candidates; and “enhancing factors” such as the existence of large districts, majority vote requirements, anti-single shot voting provisions and the lack of provision for at-large candidates running from particular geographic subdistricts. See Marengo, 731 F.2d at 1566-73. The factors are to be weighed under a “totality of the circumstances” approach. Id. at 1565-66.
The defendants insist that a remand is not necessary to decide the plaintiffs’ section 2 claim. They note that, although the legal theory of the plaintiffs’ case has changed from “intent” to “results”, the Zimmer factors are relevant under both theories. Because the case was tried under the intent standard articulated in Nevett v. Sides, which looks to the Zimmer factors, the defendants conclude that the necessary evidence for a ruling under the results standard is before this Court. They urge that the district court correctly concluded, on the basis of that evidence, that no section 2 violation occurred.
We reject the defendants’ arguments for several reasons. First, this Court emphasized in Marengo that “the Zimmer factors serve a different purpose in litigation under section 2 from their purpose in constitutional litigation.” Marengo, 731 F.2d at 1566. Some factors weigh more heavily under the results standard, while others weigh more heavily under the intent standard. In particular, we noted in Marengo that a showing of racially polarized voting “will ordinarily be the keystone of a dilution case” under section 2. Id. By contrast, although the responsiveness of elected officials to minority needs is an important factor under the intent test, it “is considerably less important under the results test.” Unresponsiveness is relevant under the results test only if the plaintiffs choose to make it so. Id. Moreover, Congress relegated another factor that is primary under the intent standard — tenuousness of state policies underlying an at-large scheme — to secondary importance under the results standard. Jones v. City of Lubbock, 5 Cir.1984, 727 F.2d 364, 384. It is therefore not enough for the defendants simply to note that the Zimmer factors constitute relevant evidence under both the intent and the results standard, because the weighing of those factors is different under the two standards.
Second, we are unable to tell from the district court’s opinion how the court weighed the various factors to find that the plaintiffs had not established a violation of section 2. The district court in its original opinion applied “the criteria expressed by the Zimmer Court and the Supreme Court in City of Mobile v. Bolden”. Record at 306. The court concluded that the plaintiffs had “not proved by a preponderance of the evidence the existence of an aggregate of the factors which the Zimmer Court said would make out ‘a strong case’ ” and had “failed to prove by a preponderance of the evidence that the disputed plan was conceived or operated as a purposeful device to further racial discrimination”. Id. at 308-09. In part because the court’s opinion made no mention of section 2, the plaintiffs filed a motion to alter or amend the judgment, or for a new trial, asserting that their right to relief was particularly evident under the amended section 2. The court denied the plaintiffs’ motion in a short three-paragraph opinion that gave no detailed findings of fact or conclusions of law. The court stated,
In the interest of avoiding further litigation, this Court has reviewed this case in the light [of Rogers v. Lodge and the amended section 2] and is of the opinion that... the preponderance of the evidence showing facts alleged and proved in this case do not indicate a violation of 42 U.S.C. § 1973 as last amended or of the Constitution....
Record at 322.
The court’s second opinion does not articulate the basis for its consideration of the various factors that led it to find no violation of section 2. We have only the court’s explanation for its ruling under the intent standard. But the Zimmer factors carry different weights under the results test than they do under the intent test. We are therefore unable to review, on the record before us, the district court’s interpretation or application of the new legal standard embodied in section 2. Nor does the court’s second opinion satisfy the requirements of Fed.R.Civ.P. 52(a), which requires the court to “find the facts specially and state separately its conclusions of law thereon” in all actions tried upon the facts without a jury. “When, because of absence of findings of fact or conclusions of law, an appellate court cannot determine whether the record supports the trial court decision, it should remand the action for entry of findings of fact and conclusions of law.” Complaint of Ithaca Corp., 5 Cir. 1978, 582 F.2d 3, 4.
Finally, the evidence compiled in this record is now at least six years old and does not necessarily reflect current conditions. Moreover, because the record was not compiled under the results standard of section 2, it is incomplete on certain important issues, especially the “keystone” issue of racially polarized voting. The evidence in the case focused on two Zimmer factors of special relevance in proving voting dilution under the intent standard — whether the plaintiffs had equal access to the political process and whether government officials were responsive to the interests of the plaintiff minority. Thus, neither the plaintiffs nor the defendants have had an adequate opportunity to develop a record with the results standard in mind. Fairness dictates that the case be remanded. Moreover, a remand is consistent with the Supreme Court’s action in Cross v. Baxter, 1983, 460 U.S. 1065, 103 S.Ct. 1515, 75 L.Ed.2d 942 (mem.), vacating 688 F.2d 279, 5 Cir.1982, which vacated a finding of unconstitutional vote dilution under Mobile and Rogers and remanded “for further consideration in light of Section 2 of the Voting Rights Act... as amended in 1982”.
IV. THE PLAINTIFFS HAVE NOT ESTABLISHED A SECTION 2 VIOLATION ON THE PRESENT RECORD
The plaintiffs urge us to instruct the district court, in remanding the case to supplement the record concerning post-trial events, that a section 2 violation has been established on the present record. We decline to do so. Although this Court did so instruct in the Marengo case, that case presented much stronger proof of several factors of special importance to a showing of a section 2 violation. With respect to the “keystone” issue of racially polarized voting, the district court found “extremely strong” evidence of polarized voting in elections before 1978, and continuing, though reduced, polarization in the 1978 election. Marengo, 731 F.2d at 1567. The plaintiffs had proved polarization through direct statistical analysis of the vote returns. In addition, we noted that evidence of racial polarization could be gleaned from the Marengo County school board’s primary concern with placating whites and from the district court’s expression of serious doubts that Marengo County whites would attend desegregated black majority schools. Such attitudes, we noted, were “strong circumstantial evidence that race continues to dominate politics in Marengo County.” Id. at 1567 n. 35.
By contrast, in the record before us the plaintiffs’ evidence of racially polarized voting is weak. Neither the city nor the county kept racial data concerning registered voters, and the plaintiffs introduced no direct evidence of the racial composition of the Opelika electorate. The plaintiffs relied instead on estimates and circumstantial evidence that the rate of voter registration among blacks was lower than that among whites. More importantly, the plaintiffs offered no direct evidence of the specific racial composition of the various voting boxes in the city. This information is critical to a bloc voting analysis.
The plaintiffs have presented in their brief for this appeal a statistical calculation known as an R2 coefficient, which they maintain is evidence of racially polarized voting. This coefficient correlates the percentage of a particular racial group registered in a given precinct with the percentage of the precinct vote for the candidates of that racial group. This Court has acknowledged that the R2 coefficient is relevant to the issue of racial bloc voting. See NAACP v. Gadsden County School Board, 11 Cir.1982, 691 F.2d 978, 982-83; McMillan v. Escambia County, 5 Cir.1981, 638 F.2d 1239, 1241 n. 6 (former Fifth Circuit). The plaintiffs, however, did not present this calculation at trial, and, absent extraordinary circumstances, federal appellate courts will not consider evidence that was not part of the trial record. International Business Machines v. Edelstein, 2 Cir.1975, 526 F.2d 37, 45. Moreover, the defendants have not had a fair opportunity to confront this evidence.
Because it appears likely that the parties will want to develop evidence concerning the R2 coefficient on remand, we offer the following observations on the use of this evidence. First, in the two cases cited that made use of this evidence, the evidence was introduced through an expert. See Gadsden, 691 F.2d at 983; Escambia, 638 F.2d at 1241 n. 6. Moreover, the precise racial breakdown of registered voters was apparently known in both cases. See id. The R2 coefficients were therefore based on precise and detailed factual data concerning the racial composition of registered voters and election outcomes. The plaintiffs in this case have not established on the present record a comparable factual database upon which to found their statistical analysis.
Second, we caution against placing too much reliance solely on the R2 coefficients in ruling on the issue of racially polarized voting. We agree with the cautionary remarks of Judge Higginbotham:
Care must be taken in the factual development of the existence of polarized voting because whether polarized voting is present can pivot the legality of at-large voting districts. The inquiry is whether race or ethnicity was such a determinant of voting preference in the rejection of black or brown candidates by a white majority that the at-large district, with its components, denied minority voters effective voting opportunity. In answering the inquiry, there is a risk that a seemingly polarized voting pattern in fact is only the presence of mathematical correspondence of race to loss inevitable in such defeats of minority candidates.
Jones v. City of Lubbock, 5 Cir.1984, 730 F.2d 233, 234 (Higginbotham, J., specially concurring). It will often be necessary to examine factors other than race that may also correlate highly with election outcomes — campaign expenditure, party identification, income, media advertising, religion, name recognition, position on key issues, and so forth. Well-established statistical methods, such as step-wise multiple regressions, can test the relative importance of multiple factors. Such analysis can assist in the determination of whether race is the dominating factor in political outcomes.
In addition to a much stronger showing of racially polarized voting than the record in this case presents, the plaintiffs in Mar-engo also presented more evidence than was presented here of election practices exacerbating the deficiencies in black participation. There was evidence in Marengo that appointments of poll officials were racially motivated and tended toward tokenism. The plaintiffs also showed that the County Board of Registrars was open only two days a month except in election years, and that, contrary to state law, the Board met only in the county seat and failed to visit outlying areas to register rural voters, who were more black than white. Maren-go, 731 F.2d at 1569-70. In Opelika, the registrar’s office is open every day of the week. One of the plaintiffs is a voting official and another has assisted voting officials in registering voters of both races. This record therefore presents a much weaker showing on two significant factors — racially polarized voting and election practices — than did the record in Marengo. We therefore decline to instruct the district court that the plaintiffs have established a section 2 violation on the present record.
V. CONCLUSION
We conclude, as in Marengo, that this case must be remanded to the district court “to allow the parties to update the record and to supplement the record with evidence that might tend to affect [a] finding of discriminatory results.” Marengo, 731 F.2d at 1574. This case is now more than six years old. We do not intend that a complete retrial of every issue be had on remand. We suggest that the parties focus on those factors, referred to in this opinion, that in Marengo were central to the section 2 analysis, particularly racially polarized voting.
We VACATE the judgment of the district court that the plaintiffs did not establish a claim of voting dilution under the Fourteenth Amendment, the Fifteenth Amendment, and section 2 of the Voting Rights Act. We REMAND for further proceedings on the section 2 claim in accordance with this opinion.
. See Parker, The “Results” Test of Section 2 of the Voting Rights Act: Abandoning the Intent Standard, 69 Va.L.Rev. 715, 729, 764 (1983).
. The plaintiffs attempted to prove lack of access to the political process by demonstrating the depressed socioeconomic status of blacks in Opelika, the exclusion of blacks from governing boards and other positions of public responsibility in the city, the absence of consideration of blacks to fill vacancies in the city commission caused by death or resignation, and the existence of racial bloc voting. The plaintiffs attempted to prove unresponsiveness by demonstrating the underrepresentation of blacks on administrative boards and in the municipal workforce, the city’s failure to provide municipal services for which the black community had a particularized need, and the continued de fac-to segregation of the city’s cemeteries, recreation program, and public housing.
The defendants responded to the plaintiffs’ charge of lack of access by showing that the city maintained no device or procedure that prohibited black citizens from voting, registering to vote, nominating candidates, qualifying as a candidate, or campaigning as or for a candidate. The defendants also introduced evidence that the plaintiffs had conducted a successful campaign to register black voters; that the city had relocated voting booths to be more convenient to black than to white residents; that candidates for the city commission regularly sought the support of black voters; and that the number of blacks holding clerical and administrative positions in the city workforce had increased between 1970 and 1978. The defendants responded to the plaintiffs’ charge of unresponsiveness by showing that new street lighting was first installed in black areas of the city; that development funds, such as matching city water board funds, were spent in black, low and moderate income areas; that there were numerous instances in which the city treated blacks more favorably than others; that the city's schools were fully integrated; that 28 percent of the city workforce was black; and that substantial gains in the employment of blacks in all areas had been made since 1970.
. In a footnote the court wrote:
Plaintiffs insist that Rogers v. Lodge, supra, represents a withdrawal by the Supreme Court from a strict requirement of discriminatory intent allegedly articulated in Bolden v. City of Mobile [City of Mobile v. Bolden ], 446 U.S. 55 [100 S.Ct. 1490, 64 L.Ed.2d 47] (1980). Dissenting opinions seem to support that view while the majority seems to feel that the facts upon which the conclusion of discriminatory intent is based in Rogers are simply stronger than those originally articulated in Bolden. The range of this Court’s consideration of the evidence, applying principles of Bolden and Zimmer v. McKeithen, 485 F.2d 1297, seems adequate in any event.
Record at 323 n. 1.
. Parker, The “Results" Test of Section 2 of the Voting Rights Act: Abandoning the Intent Standard, 69 Va.L.Rev. 715, 727 (1983). Parker notes that, although many vote dilution cases litigated during the 1970s made both constitutional and section 2 claims,
[t]he courts may have considered discussion of the section 2 standard to be superfluous because they thought the prevailing constitutional standard, under which proof of discriminatory purpose was not required, and the section 2 standard were the same. The courts may also have preferred to rely on the more developed case law discussing the proper constitutional standard as the safest basis for their decisions.
Id. at 727-28.
. See id. at 747-50.
. Moreover, if the plaintiffs cannot prevail under the generally more easily proved "results” standard of section 2, it is unlikely that they could prevail on their constitutional claims in any event.
. “Voting along racial lines allows those elected to ignore black interests without fear of political consequences, and without bloc voting the minority candidates would not lose elections solely because of their race.” Rogers v. Lodge, 1982, 458 U.S. 613, 623, 102 S.Ct. 3272, 3279, 73 L.Ed.2d 1012, 1022.
. “[Ujnresponsiveness is of limited importance under section 2 for two reasons. First, section 2 protects the access of minorities not simply to the fruits of government but to participation in the process itself.... Second, responsiveness is a highly subjective matter, and this subjectivity is at odds with the emphasis of section 2 on objective factors.” Marengo, 731 F.2d at 1572.
. In Kirksey v. City of Jackson, 5 Cir.1983, 714 F.2d 42, the Court found that the amendments to section 2 changed the law enough that a dismissal of the plaintiffs' claim under the old section 2 was not a bar under the doctrine of res judicata to a new action under the amended section 2.
. The plaintiffs estimate that 80 percent of their time spent in developing and trying this case originally was devoted to the issue of responsiveness.
. Judge Goldberg, specially concurring in a decision to remand a case for reconsideration in the light of Mobile, observed that
due process and precedent mandate that when the rules of the game are changed, the players must be afforded a full and fair opportunity to play by the new regulations. Therefore, the litigants in this action must be allowed, if they so desire, to present further evidence on remand to establish their claims under the law announced in [Mobile ].
Jones v. City of Lubbock, 5 Cir.1981, 640 F.2d 777, 777-78 (Goldberg, J., specially concurring).
. The plaintiffs estimated the racial composition of the voting boxes by comparing the geographic boundaries of the census enumeration'districts with the geographic boundaries of Ope-lika’s voting precincts.
. In Escambia, for example, the complete record of city and county elections since 1955 was brought before the court. Regression statistics were performed in all precincts and those statistics were analyzed by political scientists. The court found a very high correlation in both city and county elections between the percentage of blacks in a precinct and the number of votes a black candidate received in that precinct. Escambia, 638 F.2d at 1241 n. 6. In Gadsden, the R 2 coefficients illustrated “a higher degree of racial polarization in Gadsden County than the district court found sufficient in Escambia". Gadsden, 691 F.2d at 983.
. Judge Higginbotham added:
The point is that there will almost always be a raw correlation with race in any failing candidacy of a minority whose racial or ethnic group is [a] small percentage of the total voting population____ Yet, raw correspondence, even at high levels, must accommodate the legal principle that the amended Voting Rights Act does not legislate proportional representation. More complex regression study or multi-variate mathematical inquiry will often be essential to gauge the explanatory power of the variables necessarily present in a political race. Nor will math models always furnish an answer. A healthy dose of common sense and intuitive assessment remain powerful components to the critical factual inquiry. For example, a token candidacy of a minority unknown outside his minority voting area may attract little non-minority support and produce a high statistical correspondence of race to loss. Yet, one on the scene may know that race played little role at all. In sum, detailed findings are required to support any conclusions of polarized voting.
730 F.2d at 234 (
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:
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songer_method
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. COASTAL REFINING AND MARKETING, INC., Defendant-Appellee, Cross-Appellant.
No. 89-6056.
United States Court of Appeals, Fifth Circuit.
Sept. 14, 1990.
Kenneth W. Starr, Sol. Gen., U.S. Dept, of Justice, Michael P. Healy, Robert L. Klarquist, Land & Natural Res. Div., Dept, of Justice, Appellate Sect., C. Carrick Brooke-Davidson, Dept, of Justice, Environmental Enforcement Sect., Washington, D.C., for plaintiff-appellant cross-appellee.
Keith A. Jones, Fulbright & Jaworski, Washington, D.C., Louis S. Zimmerman, J.B. Ruhl, Fulbright & Jaworski, Austin, Tex., for defendant-appellee cross-appellant.
Before REAYLEY, DUHÉ and WIENER, Circuit Judges.
REAYLEY, Circuit Judge:
The United States brought this action against Coastal Refining and Marketing, Inc. (“Coastal”), alleging violations of the Environmental Protection Agency’s Clean Air Act regulations with respect to five cargos of imported petroleum product. On cross-motions for summary judgment, the trial court held that Coastal had, in fact, violated the regulations as to four of the five cargos. The trial court, however, refused to impose the $9 million in mandatory penalties sought by the government because the court found that § 211(d) of the Clean Air Act, which establishes the mandatory penalty, is unconstitutional. The government appeals, arguing that § 211(d) is constitutional and that Coastal violated the regulations with respect to the fifth cargo. Coastal cross-appeals, contending that the trial court erred in concluding that it had violated the regulations with respect to four of the cargos. We vacate the judgment and dismiss the suit of the United States.
I.
Section 211(c) of the Clean Air Act authorizes the Administrator of the Environmental Protection Agency (“EPA”) to promulgate regulations to
control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive for use in a motor vehicle or motor vehicle engine ... if in the judgment of the Administrator any emission product of such fuel or fuel additive causes, or contributes, to air pollution which may reasonably be anticipated to endanger the public health or welfare....
42 U.S.C. § 7545(c)(1).
For several years the EPA has recognized that lead, which historically was used as an additive to enhance the octane level of gasoline, poses a threat to human health. See Small Refiner Lead Phase-Down Task Force v. United States EPA, 705 F.2d 506, 511, 527-31 (D.C.Cir.1983). Accordingly, the EPA has regulated the use of lead as an additive since 1973. See id. at 512. In 1985, the Administrator issued regulations under § 211(c) to reduce substantially the lead content in gasoline. See Union Oil Co. v. U.S. EPA, 821 F.2d 678, 679 (D.C.Cir.1987). The regulations called for a gradual reduction in lead content over a period of time. To provide producers and importers with flexibility during the “lead phasedown” period, the EPA regulations permitted those who voluntarily used less lead per gallon than specified in the regulations to “bank” the difference as a “lead usage right.” See 40 C.F.R. § 80.20(e)(1). These “rights,” also referred to as “credits,” could then be withdrawn through the end of 1987 to comply with the new, more stringent, standards as they became effective. Id. § 80.20(e)(2). These “credits” could also be transferred through the end of 1987, at which time the program ended. Id.; see also Union Oil Co., 821 F.2d at 680.
In order for a producer or importer to generate any “lead usage rights” under the regulatory program, the product produced or imported had to be “gasoline.” See 40 C.F.R. § 80.20(c)(1)®, (e)(l)(i)-(ii), (e)(3). “Gasoline” is defined as
any fuel sold in any State for use in motor vehicles and motor vehicle engines, and commonly or commercially known or sold as gasoline.
Id. § 80.2(c) (footnote omitted). Those who participated in the lead banking program were required to make quarterly reports to the EPA in which the product being produced or imported was identified. See id. § 80.20(a)(3), (c)(3), (e)(2)(iii), (e)(3)(iv). These reports enabled the EPA to ensure that the total amount of “banked” credits used by the industry did not exceed the maximum allowed under the lead content standard. See Union Oil Co., 821 F.2d at 680.
To give the § 211(c) regulations force, § 211(d) of the Clean Air Act provides that
[a]ny person who violates ... the regulations prescribed under subsection (c) ... shall forfeit and pay to the United States a civil penalty of $10,000 for each and every day of the continuance of such violation....
42 U.S.C. § 7545(d). Section 211(d) further provides that the Administrator of the EPA may remit or mitigate the $10,000 per day penalty. Id.
II.
During the first half of 1985, Coastal imported five cargos of petroleum product from Mexico. In its quarterly reports to the EPA, Coastal classified the cargos as “gasoline” and reported the creation of approximately 30 million grams of “lead usage rights” based on this classification.
The United States brought this action against Coastal, contending that the imported product was not “gasoline” and that the “lead usage rights” were, therefore, invalidly created. The government sought $9 million in penalties under § 211(d) ($10,-000 per day for 900 days — from the time Coastal classified the product as “gasoline” in the quarterly report on July 15, 1985, until December 31, 1987, the date the banking program ended).
Coastal moved for summary judgment and the United States filed a cross-motion for summary judgment. The trial court granted partial summary judgment on the issue of liability in favor of the United States. With regard to four of the five cargos, the court concluded that Coastal had not imported “gasoline” and, therefore, that the lead credits were not validly created. The court determined that § 211(d) of the Clean Air Act, which imposes the mandatory $10,000 per day penalty for a violation of the regulations issued under § 211(c), was unconstitutional. Consequently, the trial court did not impose any penalty on Coastal. The court also granted partial summary judgment for Coastal, holding that one cargo was “gasoline.”
The government appeals the lower court’s determination that § 211(d) is unconstitutional and that one of the five car-gos was “gasoline” as defined by the regulations. Coastal cross-appeals, claiming that the trial court erred in holding that four of its cargos were not “gasoline.”
III.
A. “Gasoline ”
In order to create “lead credits” under the EPA’s “banking” program, an importer must import “gasoline” as defined in the regulations. Two requirements must be met for a petroleum product to be considered “gasoline”: (1) it must be fuel of a type “sold in any State for use in motor vehicles and motor vehicle engines,” and (2) it must be “commonly or commercially known or sold as gasoline.” 40 C.F.R. § 80.2(c). The EPA’s regulatory definition is non-technical and provides no objective test against which product can be measured. As the trial court noted, in determining whether a product is “gasoline,” the courts are resigned to using “other objective standards available as a way of postulating some formula or standard which encompasses this legal definition.” A number of standards were presented to the trial court, including specifications of the American Society for Testing and Materials (“ASTM”).
The ASTM has established a standard specification for automotive gasoline. This specification, “established on the basis of the broad experience and close cooperation of producers of gasoline, manufacturers of automotive equipment, and users of both,” provides guidance “in establishing the requirements of gasoline for ground vehicles equipped with spark-ignition engines.” As the specification itself admits, “[i]t neither necessarily includes all types of gasolines that are satisfactory for automotive vehicles, nor necessarily excludes gasolines that may perform unsatisfactorily....” Although the specification does not provide an objective, comprehensive definition of gasoline, it is useful to the court as an aid in determining whether a particular product is “commonly or commercially known or sold as gasoline”; the standard was developed in conjunction with gasoline producers, automotive equipment manufacturers, and users of both. In addition, it has been incorporated into certain federal procurement standards. Because of the broad-based participation of key groups in developing the standard and its use in federal procurement practices, we accept that standard as our guide in determining whether a product is “commonly or commercially known” as “gasoline.”
The ASTM standard identifies several characteristics of gasoline. These characteristics include, but are not limited to, sulphur content, gum content, vapor pressure, oxidation stability, and octane content. The specification establishes objective standards for each of these several characteristics. For example, the specification establishes 87 as a minimum octane level for leaded gasoline. Similar objective standards are established for each of the other characteristics identified in the specification.
In its order, the trial court recognized that a number of characteristics are considered in determining whether product is “gasoline” and that octane plays a critical role in that determination. The court also acknowledged that to be “gasoline” a product must be both (1) fuel of a type “sold in any State for use in motor vehicles and motor vehicle engines” and (2) “commonly or commercially known or sold as gasoline.” Id. However, the lower court focused its analysis on the second portion of the definition and based its ruling exclusively on the octane level of the cargos.
(1) “Commonly or commercially known or sold as gasoline”
The record reveals that the trial court had before it the results of tests that inspectors had performed on each of the five cargos imported by Coastal. Coastal’s expert witness testified that each cargo satisfied all ASTM standards for gasoline. The government did not dispute that the test results satisfied the ASTM standards with regard to any characteristic of gasoline other than octane content. As to octane content, the government contended that the cargos fell below a level found in product that was “commonly or commercially known or sold as gasoline.”
In determining whether any of the car-gos imported by Coastal were “commonly or commercially known or sold as gasoline,” the trial court specifically stated that “[t]he parties agree that Coastal’s fuel met all [ASTM D 439] requirements, except [for octane content].” As to octane content the court stated that “[a] thorough review of all the specifications reveals that the minimum octane level for leaded gasoline is 87(R + M)/2. Allowable deductions ... reduce this minimum to 81.8(R + M)/2. Therefore, the only cargo ... imported by Coastal that qualifies as gasoline is the Pacific Hunter” (I) shipment with an octane level of 82.6, all other octane levels of the Coastal cargos being below 81.8. The trial court’s holding, at least as to the second part of the two-part definition of “gasoline,” rests solely on a determination that product with an octane level above 81.8 is “gasoline” and product with an octane level below 81.8 is not “gasoline.”
In its cross-appeal, Coastal argues that in arriving at 81.8 as a minimum octane level the trial court committed a mathematical error and that if the math is performed properly, the minimum acceptable octane rating as specified by the ASTM is 80.8. Because all of the Coastal cargos had octane levels exceeding 80.8, Coastal contends that it has satisfied the second part of the two-part definition of “gasoline.”
The United States does not defend the mathematical calculation of the trial court. In fact, the government concedes that Coastal has raised a genuine issue of material fact as to whether the cargos are “commercially known” as “gasoline.” We believe that Coastal has done more than that. Coastal correctly points out that the trial court erred in applying the ASTM specifications for octane levels. As noted earlier, the ASTM establishes 87 as the minimum octane level for leaded gasoline. The ASTM further provides that this octane level can be reduced by up to 4.5 for variations in altitude and by as much as 1 for climatic conditions. This results in a minimum octane level of 81.5.
In addition, the ASTM recognizes that octane measurements may be imprecise. As a consequence, the ASTM specification suggests that an octane measurement of a particular cargo may differ from another measurement of that same cargo by as much as .7 before the test results are considered suspect. We do not necessarily agree with Coastal that this .7 “precision variance” is automatically made a part of the ASTM specification for all purposes. However, the ASTM’s recognition of measurement variances informs this court’s judgment and for purposes of determining whether a particular product is “commonly or commercially known or sold as gasoline,” a .7 reduction in the minimum octane level is appropriate. Taking into account this “precision variance,” the minimum octane rating for gasoline under the ASTM standard is 80.8. The octane level of all of Coastal’s cargos exceeded the 80.8 octane level. Because all five of Coastal’s cargos meet all of the ASTM requirements for gasoline, including octane content, we believe there can be no question that those five cargos are “commonly or commercially known” as “gasoline.”
(2) “Sold in any state”
For a product to be “gasoline” within the meaning of the EPA regulations it must not only be “commonly or commercially known or sold as gasoline,” it must also be “sold in any State for use in motor vehicles and motor vehicle engines.” Id. On appeal the government focuses its attack on this part of the “gasoline” definition and argues that Coastal has failed to demonstrate that fuel with an octane level of 82.6 (the highest octane level of any of Coastal’s cargos) or below was “sold in any State for use in motor vehicles.” The government presented the trial court with a variety of studies showing that the majority of gasoline sold throughout the country has an octane level above 82.6. However, the trial court apparently did not find the evidence on this point in favor of the government and neither do we.
As we read the regulation, all that an importer must do to satisfy this part of the definition is to show evidence of a single sale in one state of gasoline of the same type as that being imported. This Coastal did by evidence of “postings.” The Federal Trade Commission requires that the octane content of gasoline be posted at the pump. See 16 C.F.R. pt. 306. The actual octane content must equal or exceed the posted octane content. See id. § 306.9(c). Coastal presented evidence to the trial court that at four service stations in the United States the posted octane level was below 82.6. One station (in Oregon) had a posted octane level of 80, which is lower than all of Coastal’s imported cargos. We find, as the trial court implicitly must have, that this is sufficient evidence to satisfy the first part of the definition.
The government argues that this is insufficient evidence to support the conclusion that gasoline with octane levels as low as that of the Coastal cargos was sold in any state. The government insists that these postings, admittedly a tiny fraction of the full number of postings, are the result of transcribing errors. The government also suggests that, based upon its surveys, the actual octane content exceeds the posted octane level and that postings are not evidence of actual sales. Other explanations are offered by the government. However, the government fails to offer any evidence that the posted octane content of 80 at the one station was, in fact, the result of a scriveners error. Nor did the government prove that the actual octane content of the gasoline in the pump exceeded the posted octane level of 80 or that there was no sale of such low octane gasoline from that station. We agree with Coastal that this posting presents a prima facie case as to the actual octane level of the gasoline at that station and that postings are evidence of sales. On this record, this posting establishes a material fact in favor of Coastal over which there is no genuine issue. Because Coastal has satisfied both parts of the two-part “gasoline” definition, it is entitled to summary judgment as to all five cargos. We affirm the trial court’s judgment as to the Pacific Hunter (I) cargo and reverse as to the other four cargos.
Because Coastal is not liable for any regulatory violation, we are not compelled to say more. However, we think it will be useful to state our views on the constitutionality of § 211(d) and to express our disagreement with the lower court’s holding in this regard.
B. Constitutionality of § 211(d)
Section 211(d) of the Clean Air Act provides that
[a]ny person who violates ... the regulations prescribed under subsection (c) of this section ... shall forfeit and pay to the United States a civil penalty of $10,-000 for each and every day of the continuance of such violation_ The Admin-
istrator may, upon application therefor, remit or mitigate any forfeiture provided for in this subsection and he shall have authority to determine the facts upon all such applications.
42 U.S.C. § 7545(d). After finding Coastal liable for violating the regulations of subsection (c), the trial court refused to impose the required penalty because the court determined that § 211(d) was unconstitutional. The court stated that
[sjection 211(d) violates the Separation of Powers Doctrine because it subjects the judgment of an Article III Court to review by the Executive Branch. The Article III judge is, in essence, performing an administrative task by determining only the number of days of violation and imposing a mandated penalty. No discretion remains....
Furthermore, the obligatory penalty provision is pre-determined. By denying a defendant the right to present an equitable defense and the Court the right to use its discretion in imposing a penalty, the provision violates the established procedures and guaranteed rights of due process, and therefore violates the Fifth Amendment.
Likewise, the imposition of a $10,000 fine may be reasonable and justifiable in many circumstances; in others it may not be. Not allowing the Court jurisdiction to hear equitable defenses when assessing a penalty deprives the Court of inherent discretion and may result in a penalty with no rational relationship between the violation and the penalty imposed.
We disagree with the district court’s assessment that § 211(d) violates the principles of separation of powers and due process.
(1) Separation of Powers
The trial court determined that § 211(d) violates the principle of separation of powers because it establishes a mandatory penalty and allows the Administrator of the EPA to remit or mitigate the penalty after it is imposed by the court.
The Constitution separates governmental powers into three coordinate branches. Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 2620, 101 L.Ed.2d 569 (1988). It is this separation of powers that serves as a “ ‘safeguard against the encroachment or aggrandizement of one branch at the expense of the other.’ ” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 684, 46 L.Ed.2d 659 (1976)). The principle of separation of powers is violated when an “Act ‘impermissibly undermine[s]’ the powers of [one] Branch, or ‘disrupts the proper balance between the coordinate branches [by] preventpng] th[at] Branch from accomplishing its constitutionally assigned functions.’ ” Id. 108 S.Ct. at 2621 (citations omitted). We see no evidence that § 211(d) of the Clean Air Act violates the principle of separation of powers. The constitutionality of congressionally established mandatory penalties such as that found in § 211(d) seems beyond doubt. See Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 1840, 95 L.Ed.2d 365 (1987) (In denying the defendant’s claim of a Seventh Amendment right to have a jury determine the amount of damages under the Clean Water Act, the Supreme Court reasoned that “the action to recover civil penalties usually seeks the amount fixed by the Congress.... Since Congress itself may fix the civil penalties, it may delegate that determination to trial judges.”); see also United States v. Regan, 232 U.S. 37, 43, 34 S.Ct. 213, 215, 58 L.Ed. 494 (1914); Hepner v. United States, 213 U.S. 103, 108, 29 S.Ct. 474, 476-77, 53 L.Ed. 720 (1909). Similarly, statutes giving the executive branch the power to remit or mitigate a congressionally established and judicially imposed penalty have long been recognized and approved by the Supreme Court. See Confiscation Cases, 74 U.S. (7 Wall.) 454, 461-62, 19 L.Ed. 196 (1869) (Secretary of Treasury can “remit a forfeiture or penalty, accruing under [statutes], subsequent to the final decree or judgment”); Johnson v. United States, 74 U.S. (7 Wall.) 166, 174-75, 19 L.Ed. 187 (1869) (power of Secretary of Treasury to mitigate is not judicial exercise; rather it is one of mercy from which no appeal can be taken); see also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 690 n. 27, 94 S.Ct. 2080, 2095 n. 27, 40 L.Ed.2d 452 (1974); The Laura, 114 U.S. 411, 5 S.Ct. 881, 29 L.Ed. 147 (1885); United States v. Morns, 23 U.S. (10 Wheat. 246) 246, 292-96, 6 L.Ed. 314 (1825). The mandatory penalty and the mitigation authority provided the Administrator of the EPA in § 211(d) presents neither an aggrandizement of power by one branch at the expense of the other nor an encroachment of one branch on the other. Section 211(d) simply does not impermissibly undermine the powers of the judicial branch.
(2) Due Process
As to the district court’s holding that the mandatory penalty provision of § 211(d) violates due process by denying a defendant the right to present — and the court the right to consider — equitable defenses, we agree with the government that there is no inherent power for the judiciary to mitigate congressionally-mandated penalties. See Clark v. Barnard, 108 U.S. 436, 457, 2 S.Ct. 878, 890, 27 L.Ed. 780 (1883) (“where any penalty or forfeiture is imposed by statute ... courts of equity will not interfere to mitigate the penalty or forfeiture, ... for it would be in contravention of the direct expression of [Congress]”). A court in equity may not do that which the law forbids. See Immigration & Naturalization Serv. v. Pangilinan, 486 U.S. 875, 108 S.Ct. 2210, 2216, 100 L.Ed.2d 882 (1988).
The trial court also determined that § 211(d) is unconstitutional because the mandatory penalty may bear no rational relationship to the violation involved in a particular case. In so doing, the court erred. A court may not declare a statute facially invalid based upon a hypothetical possibility that the law may be unreasonable in certain circumstances. See United States v. Raines, 362 U.S. 17, 20-22, 80 S.Ct. 519, 522-23, 4 L.Ed.2d 524 (1960) (“one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional”); accord Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-02, 105 S.Ct. 2794, 2800-01, 86 L.Ed.2d 394 (1985). The trial court failed to do that which it must — determine whether a statute is constitutional as applied to the facts in the case before it. See Raines, 362 U.S. at 21-22, 80 S.Ct. at 522-23.
It is unnecessary for this panel to consider the other arguments raised by the parties given our resolution of the determinative issue — Coastal properly classified its imported product as “gasoline.”
The judgment of the district court is VACATED and the suit of the United States is DISMISSED.
. The lead content of gasoline produced or imported after July 1, 1985, was to be reduced from 1.10 grams of lead per gallon of leaded gasoline to no more than an average level of 0.50 grams of lead per gallon of leaded gasoline. After December 31, 1985, the lead content could be no more than 0.10 grams of lead per gallon of leaded gasoline on average during any quarter of the calendar year. See 40 C.F.R. § 80.20(c)(1) (standards for importers).
. To be "gasoline,” the imported product does not actually have to be sold as such. Coastal’s imported product was not sold directly on the market as gasoline.
. The relevant standard is designated as D 439 and is entitled “Standard Specification for AUTOMOTIVE GASOLINE." The standard indicates that it is a living document subject to change; it represents a description of gasolines at a given point in time.
. "Gasoline” is broadly defined in ASTM D 439 as "a volatile mixture of liquid hydrocarbons, generally containing small amounts of additives, suitable for use as a fuel in spark-ignition internal combustion engines.”
. In its Memorandum in Support of its Cross-Motion for Partial Summary Judgment on Liability, even the government admits that EPA employees have indicated that in determining whether a fuel was “gasoline” under the EPA’s regulations, "a relevant inquiry is whether the product meets the specifications known to be commonly used in industry, such as ... American Society for Testing and Materials specifications .... ”
. All references to octane used in this opinion are (R + M)/2. This formula refers to the research octane number plus the motor octane number divided by two. See 40 C.F.R. § 80.2(d).
. The ASTM standard provides for various adjustments to this octane level. Once these adjustments are applied, the minimum octane level falls to 80.8. These adjustments and their significance in this case are discussed later in this opinion.
. The cargos, and their respective octane contents as reported by Coastal and as relied upon by the trial court, were as follows.
Cargo Octane Content
Pacific Hunter (I) 82.6
Pacific Hunter (II) 80.9
Potomac Trader 81.45
St. Michaelis 81.7
Scottish Lion 81.55
In addition to these octane levels, the record also indicates that the octane content as reported by Coastal to United States Customs for the Pacific Hunter (I) cargo was 81.2 and for the Scottish Lion cargo was 80.3. The government contends that we must rely on the lower octane levels reported to Customs in determining Coastal's cross-appeal. Although the different octane levels on these two cargos arguably present a factual dispute that would render summary judgment inappropriate, we do not consider these different readings to raise a "genuine issue of material fact” in light of other undisputed facts in this case.
As to the Pacific Hunter (I) cargo, the 81.2 octane reading reported to Customs is still above a properly calculated minimum octane level specified by the ASTM after adjustments are applied. See supra note 7. The different reading on this cargo is, therefore, immaterial.
As to the Scottish Lion cargo, we note that the record indicates that the 81.55 reading is the reading upon discharge, and the 80.3 reading appears to be a reading taken upon loading. The difference in the two readings was not explained by the parties. It may merely reflect the imprecision in measuring octane levels. We also note that on appeal the government has not directly challenged the trial court’s reliance on the octane levels reported in the chart above.
Standing alone, however, the 80.3 octane level is not dispositive of the status of the product as "gasoline.” Although octane content is critical in determining whether a product is "gasoline,” octane content is not the only criteria. Assuming 80.3 is the octane level of the Scottish Lion cargo, in a situation such as this, where a product indisputably meets all ASTM criteria (except octane content) and where there is evidence of gasoline with octane levels as low as 80 being sold, see infra, we believe that there can be no doubt that such product is "commonly or commercially known” as "gasoline" where its octane content falls a mere fraction of a point below the ASTM minimum adjusted octane level of 80.8. The process of classifying product as "gasoline” does not rely on a "bright-line” test and is not as precise as the trial court order might suggest. The ASTM standard admits as much. Presumably, if the EPA wished to inject more certainty into the task, it could do so through a regulatory revision.
. Our reading of the trial court order suggests that the court relied on a federal procurement specification modified by the ASTM. standard specification in arriving at its minimum octane level. As we stated earlier, for purposes of determining whether a product is "commonly or commercially known” as “gasoline” we accept the ASTM as our guide. See supra note 5 and accompanying text.
. In its order, the trial court noted that the ASTM standard provides for a .7 "precision variance,” and the court, in fact, applied a .7 reduction in its analysis. Although the applicability of this "precision variance” was disputed by the parties below, on appeal the government has not addressed the issue. Testimony before the trial court revealed that the “precision variance” could be used. In addition, the government’s own witness stated that the State of Maryland routinely applies a .7 variation in determining compliance with State octane specifications.
. See supra note 8.
. The trial court’s order acknowledges that this part of the two-part definition must be satisfied for product to be properly classified as "gasoline.” Beyond this acknowledgment, the court did not discuss how this part of the definition was met in this case. However, the trial court implicitly found that this portion of the definition was satisfied with respect to the Pacific Hunter (I) cargo because it found that cargo to be properly classified as "gasoline."
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
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songer_dissent
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
MASSACHUSETTS ASSOCIATION OF OLDER AMERICANS, et al., Plaintiffs, Appellants, v. Alexander SHARP, II, etc., Defendant, Appellee.
No. 82-1592.
United States Court of Appeals, First Circuit.
Argued Jan. 7, 1983.
Decided Feb. 15, 1983.
Suzanne Harris, Cambridge, Mass., with whom Steven A. Hitov, New Rochelle, N.Y., was on brief, for plaintiffá, appellants.
Thomas Noonan, Deputy Gen. Counsel, Hyde Park, Mass., Dept, of Public Welfare, with whom Francis X. Bellotti, Atty. Gen., and E. Michael Sloman, Asst. Atty. Gen., Boston, Mass., Government Bureau, were on brief, for defendant, appellee.
Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges.
BOWNES, Circuit Judge.
Plaintiffs-appellants are a subclass consisting of approximately 4,400 families with stepchildren whose Medicaid and Aid to Families with Dependent Children (AFDC) has been terminated as a result of the stepparent liability provision recently added to the AFDC program. 42 U.S.C. § 602(a)(31) (as amended). Defendant-appellee is the Commissioner of the Department of Public Welfare of the Commonwealth of Massachusetts. Plaintiffs appeal from the district court’s denial of their motion for a preliminary injunction to prevent the termination of Medicaid. See 28 U.S.C. § 1292. We reverse.
The Medicaid program was established in 1965 as Title XIX of the Social Security Act to provide federal financial assistance to states choosing to reimburse needy persons for certain medical treatment costs. Act of July 30, 1965, Pub.L. No. 89-97, tit. I, § 121(a), 79 Stat. 343; see Schweiker v. Hogan,-U.S. --,-, 102 S.Ct. 2597, 2600, 73 L.Ed.2d 227 (1982). States are not required to participate in the program, but if they do, they must comply with all requirements imposed both by the Act itself and by regulations promulgated by the Secretary of the Department of Health and Human Services. See 42 U.S.C. § 1396; Schweiker v. Gray Panthers, 453 U.S. 34, 37, 101 S.Ct. 2633, 2636, 69 L.Ed.2d 460 (1981). A participating state must submit a plan for medical assistance that conforms to the requirements of 42 U.S.C. § 1396a. Massachusetts has chosen to participate in the Medicaid program. See Mass.Gen.Laws Ann. ch. 118E (West Supp. 1982).
A participating state is required to provide assistance to the “categorically needy” and may provide assistance to the “medically needy.” 42 U.S.C. § 1396a(a)(10); 42 C.F.R. §§ 435.100-.340 (1981). The categorically needy are those persons receiving federal aid through other federal cash assistance programs such as AFDC and Supplemental Security Income (SSI). 42 U.S.C. § 1396a(a)(10)(A). Also included in the categorically needy are those individuals who are excluded from AFDC because of an eligibility requirement that does not apply to the Medicaid program. The medically needy are persons who are unable to pay for medical expenses, but whose income is too large to qualify for aid under other federal financial assistance programs. See Schweiker v. Gray Panthers, 453 U.S. at 37, 101 S.Ct. at 2636.
The Act mandates that assistance provided to the categorically needy “shall not be less in amount, duration, or scope than the medical assistance made available to [the medically needy] .... ” 42 U.S.C. § 1396a(a)(10)(B)(ii). Congress imposed this preference for the categorically needy to ensure that those .most in need of assistance would receive it first and in amounts not less than that received by other individuals. Schweiker v. Hogan, - U.S. at - & n. 6, 102 S.Ct. at 2601 & n. 6.
Plaintiffs, as recipients of AFDC, were all eligible for and received Medicaid pursuant to the mandatory coverage of the categorically needy. The federal regulations governing Medicaid guarantee automatic enrollment in Medicaid upon qualification for AFDC and prohibit a state from requiring an additional Medicaid application from an individual receiving AFDC. 42 C.F.R. § 435.909(a) (1981). Plaintiffs, thus, have never filed a separate application for Medicaid.
In 1981 Congress, as part of the Omnibus Budget Reconciliation Act, P.L. No. 97-35, 95 Stat. 843, amended the AFDC Act to require that states include income of stepparents in determining a stepchild’s eligibility for AFDC. See 42 U.S.C. § 602(a)(31) (as amended). Prior to this amendment a stepparent’s income was not considered in the AFDC eligibility determination. The Medicaid Act specifically excludes stepparent’s income from eligibility determinations. 42 U.S.C. § 1396a(a)(17)(D).
Acting pursuant to this new AFDC provision, defendant in March 1982 began notifying plaintiffs, AFDC families containing stepchildren, that their AFDC benefits were being terminated. These notices also advised the families that their Medicaid benefits were ending. After many families were terminated, plaintiffs brought this action seeking to have their Medicaid benefits restored and to prevent further terminations.
Plaintiffs claim that the terminations were illegal because defendant failed to comply with federal regulations requiring the state welfare agency to redetermine eligibility on other grounds before termination. See 42 C.F.R. § 435.916(e) (1981). They admit that they are no longer automatically eligible for Medicaid as AFDC recipients. Nonetheless, they claim that most of them are still covered as categorically needy because stepparent income is an AFDC eligibility requirement specifically excluded from consideration in Medicaid eligibility.
Defendant responds that the regulations requiring a redetermination prior to termination do not apply to plaintiffs because they never independently qualified for Medicaid. Rather, defendant contends, the re-determination provisions cover only Medicaid recipients who applied for Medicaid directly and are not receiving it as a function of their eligibility for some other federal assistance program. Defendant argues that the proper course for plaintiffs is to make a new application for Medicaid.
The district court denied plaintiffs’ motion for a preliminary injunction. The court’s denial was based on its belief that any harm suffered by the plaintiffs could be avoided in the main by application for Medicaid benefits. The court conditioned its denial on defendant’s sending notices to all plaintiffs informing them of the reasons for their termination from AFDC and Medicaid and advising them that they could still apply for Medicaid benefits.
In determining whether to grant a preliminary injunction the court must consider four criteria:
“(1) [whether] plaintiff will suffer irreparable injury if the injunction is not granted; (2) [whether] such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) [whether] plaintiff has exhibited a likelihood of success on the merits; and (4) [whether] the public interest will not be adversely affected by the granting of the injunction.”
Auburn News Co., Inc. v. Providence Journal Co., 659 F.2d 273, 277 (1st Cir.1981) (quoting Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981)), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). While each of these factors must be considered, “the probability-of-success component has loomed large in cases before this court.” Auburn News Co., Inc. v. Providence Journal Co., 659 F.2d at 277.
At the appellate level our review is limited. The decision to grant or deny a preliminary injunction is generally left to the discretion of the district court, and we will reverse only if the district court abused its discretion or if the denial was based on a clear error of law. See Massachusetts Association for Retarded Citizens, Inc. v. King, 668 F.2d 602, 607 (1st Cir.1981); Massachusetts Coalition of Citizens with Disabilities v. Civil Defense Agency, 649 F.2d 71, 74 (1st Cir.1981); Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d at 1009.
We think that the district court committed a clear error of law by failing to examine all of the criteria relevant to a determination of whether a preliminary injunction should issue. In particular, the district court failed to examine the legal arguments raised by the parties. In so doing, it failed to make the required appraisal of the plaintiffs’ likelihood of success on the merits. We think that an examination of the merits so clearly indicates that the plaintiffs will prevail that an injunction should issue on their behalf.
We briefly reiterate the legal claims raised by the parties. Plaintiffs contend that the federal regulations governing the Medicaid program require the defendant to redetermine their eligibility prior to terminating their Medicaid benefits. That is, although they are no longer automatically eligible for Medicaid as recipients of AFDC, the defendant, before terminating their benefits, must reexamine the relevant eligibility criteria and determine whether they qualify for Medicaid under some other eligibility category.
In support of their argument plaintiffs rely primarily on two regulations. Both regulations appear in a single subpart: “Eligibility in the States and the District of Columbia.” The first of these, 42 C.F.R. § 435.916 (1981), comes under the heading “Redeterminations of Medicaid Eligibility.” Section 435.916 requires that the state agency responsible for administering the Medicaid program must promptly redetermine eligibility when it receives information about changes in a recipient’s circumstances that may affect his or her eligibility. 42 C.F.R. § 435.916(c)(1) (1981).
The second regulation is found in the section entitled “Furnishing Medicaid.” This regulation requires the state agency to continue to furnish Medicaid to all eligible individuals until they are found to be ineligible. Plaintiffs argue that, taken together, these regulations require the state agency, once it receives possibly disqualifying information, to continue to furnish benefits until it determines that a recipient is ineligible under any possible method of qualifying for benefits.
Defendant disputes this interpretation of the regulations. He argues that section 435.916(c)(1) covers only individuals who have directly applied for Medicaid and claims that the redetermination procedure “only makes sense” if the state agency has a separate Medicaid application on file. His argument boils down to essentially one of administrative convenience.
As to section 435.930, defendant agrees that this regulation requires the state agency to continue to furnish Medicaid benefits until a recipient is found to be ineligible. Defendant argues, however, that the agency satisfied this requirement because it only discontinued benefits upon learning of plaintiffs’ ineligibility for automatic Medicaid coverage due to their loss of AFDC benefits. Defendant sees no interrelationship between sections 435.916 and 435.930 with respect to these plaintiffs. He argues that the agency was not required to do anything upon learning of plaintiffs’ loss of AFDC benefits because this made plaintiffs automatically ineligible for Medicaid and did not trigger a redetermination process. We do not agree.
In Stenson v. Blum, 476 F.Supp. 1331 (S.D.N.Y.1979), aff’d without opinion, 628 F.2d 1345 (2d Cir.), cert. denied, 449 U.S. 885,101 S.Ct. 239, 66 L.Ed.2d 111 (1980), the District Court for the Southern District of New York was confronted with an issue that is nearly identical to the one presented in this case. In Stenson the plaintiffs, a class consisting of recently terminated SSI recipients, sought a preliminary injunction to prevent the state Department of Social Services from suspending their Medicaid benefits until their eligibility was redetermined and, if they were ineligible, until they were afforded notice and an opportunity for a hearing. Id. at 1333. SSI recipients, as is so with the present plaintiffs, are mandatorily covered categorically needy individuals for the purposes of the Medicaid Act. The plaintiffs relied primarily on the same regulations that are dispositive in the present case.
In a comprehensive and well-reasoned opinion, Judge Sweet concluded that these regulations require the state agency, upon receipt of notification of an individual’s termination from SSI, to reconsider the recipient’s eligibility for Medicaid benefits. Pending this ex parte determination the state must continue to furnish such individuals with Medicaid benefits, and if it determines that an individual is ineligible, it must give notice and an opportunity for a hearing before termination. Id. at 1339-41. The court explained that these regulations apply to individuals who qualified for Medicaid under any eligibility category. Id. at 1339.
We agree with the Stenson court’s conclusion as appropriate to the case before us. Nothing in the relevant regulations evidences an intent to exclude from coverage individuals who automatically qualified for Medicaid as categorically needy. Indeed, the regulatory and statutory scheme points to the opposite conclusion. The regulatory provisions are included in the subpart which “sets forth requirements for processing applications, determining eligibility, and furnishing Medicaid.” 42 C.F.R. § 435.900 (1981). That automatically eligible recipients are covered in this subpart is clear from the inclusion of the regulation prohibiting separate Medicaid applications from AFDC recipients. Moreover, the mere determination that these plaintiffs are “disqualified” from AFDC eligibility cannot in and of itself amount to a speedy “redetermination" of their eligibility for Medicaid within the meaning of the regulations. To the contrary, the regulations suggest that the applicants are still “categorically needy,” since the reason for their disqualification (stepparent income deeming) is expressly made irrelevant to Medicaid eligibility. See 42 U.S.C. § 1396a(a)(17)(D); 42 C.F.R. § 435.113.
Our conclusion is also supported by the Medicaid statute itself. Congress mandated that the assistance provided to the mandatorily covered categorically needy cannot be less in “amount, duration, or scope” than the assistance provided to other needy groups. 42 U.S.C. § 1396a(a)(10)(B)(ii). This provision reflects the congressional preference accorded the categorically needy; they are to receive assistance first and in no less comprehensive a form because they are “persons whom Congress considered especially deserving of public assistance . . .. ” Schweiker v. Gray Panthers, 453 U.S. at 37,101 S.Ct. at 2636; see also Schweiker v. Hogan,-U.S. at- & n. 6, 102 S.Ct. at 2601 & n. 6. Thus congressional intent leads to the conclusion that any procedural protections that ensure continuity in benefits should be accorded to the categorically needy.
We conclude that plaintiffs have made an extremely strong showing of likelihood of success gn their claim that defendant terminated their Medicaid benefits without following the requisite regulations. Plaintiffs argue that given this strong showing of likelihood of success on the merits, their burden of showing irreparable injury should be commensurately reduced. See Massachusetts Coalition of Citizens with Disabilities v. Civil Defense Agency, 649 F.2d 71, 75 (1st Cir.1981). We need not consider this, however, because plaintiffs have made a sufficient showing of irreparable harm.
Plaintiffs presented affidavits of several class members who, since termination, have been financially unable to obtain necessary medical treatment. Termination of benefits that causes individuals to forgo such necessary medical care is clearly irreparable injury. See Becker v. Toia, 439 F.Supp. 324, 336 (S.D.N.Y.1977); Bass v. Richardson, 338 F.Supp. 478, 489 (S.D.N.Y. 1971). At oral argument counsel for defendant admitted that the plaintiffs would be eligible for Medicaid unless their income drastically increased or the children reached the age of twenty-one. An increase in income for any of these plaintiffs sufficient to render them ineligible for Medicaid would be a minor miracle; reaching the age of twenty-one for most of the children is not actuarially possible within the time limits of this case. Defendant’s claimed injury from the loss of public funds to ineligible individuals is, in reality, no injury at all, just a remote possibility of injury. Thus the harm to plaintiffs far outweighs that of defendant and a preliminary injunction must issue.
The order of the district court denying preliminary injunctive relief to the subclass of plaintiffs is vacated. The case is remanded to the district court with instructions to issue forthwith a preliminary injunction reinstating the Medicaid benefits of the subclass of plaintiffs until the defendant complies with the statutory and regulatory provisions requiring redetermination of Medicaid eligibility prior to termination of benefits and affords plaintiffs their requisite fair hearing rights if they are found ineligible.
So ordered.
. Defendant’s claim that plaintiffs never applied for Medicaid benefits is simply incorrect. Since the federal regulations prohibit a state from requiring a separate application for Medicaid from AFDC recipients, an AFDC application once granted is an application for Medicaid. See Dixon v. Quern, 537 F.Supp. 983, 988 (N.D.I11.1982).
. The parties stipulated that since defendant’s issuance of notices in compliance with the district court’s order, only 82, or 1.86%, of the 4,400 terminated families have had their Medicaid benefits restored.
Question: What is the number of judges who dissented from the majority?
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.
EXPORTAL LTDA., Mario Fantuzzi, and Jesus Villasante, Petitioners, v. UNITED STATES of America and Clayton Yeutter, Secretary of Agriculture, Respondents.
No. 89-1068.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 26, 1990.
Decided April 13, 1990.
Walter H. Lion, New York City, for petitioners.
Raymond W. Fullerton, Asst. Gen. Counsel, Dept, of Agriculture, with whom James Michael Kelly, Associate Gen. Counsel, Margaret M. Breinholt, Deputy Asst. Gen. Counsel, and Ellen R. Hornstein, Dept, of Agriculture, Washington, D.C., were on the brief, for respondents.
Before WALD, Chief Judge, and MIKVA and EDWARDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
HARRY T. EDWARDS, Circuit Judge:
In this case, petitioner, Exportal Ltda. (“Exportal”), a Chilean fruit producer, challenges a decision of the Secretary of Agriculture (“Secretary”) declining to waive a bond requirement in connection with a reparation proceeding sought to be initiated by petitioner. Department of Agriculture (“DOA”) regulations provide that the bond requirement “shall be waived” if a foreign complainant can show that its nation does not require a United States complainant to file a bond in a proceeding against a citizen of that nation. 7 C.F.R. § 47.6(b) (1989). Exportal’s request for a waiver of the bond requirement was denied because, according to the Secretary, such waivers remain discretionary even when a foreign complainant makes the requisite showing pursuant to agency regulations. We find this decision to be flatly inconsistent with the plain terms of DOA’s regulations. Accordingly, we reverse and remand for further proceedings.
As an initial matter, we hold that the Secretary’s decision is a “final order” reviewable under the Administrative Orders Review Act, 28 U.S.C. § 2342(2) (1982). Second, we hold that the petitioner’s challenge must be upheld because the Secretary’s decision is contrary to the plain language of the agency’s own regulations. Finally, we remand for further proceedings to allow the Secretary to address whether Exportal has shown that Chilean law satisfies the reciprocity requirement imposed by section 47.6(b).
I. Background
The Perishable Agricultural Commodities Act, 7 U.S.C. §§ 499a-499s (1988) (“PACA”), establishes a remedial scheme to protect agricultural producers from fraudulent practices by brokers. See generally Harry Klein Produce v. Department of Agriculture, 831 F.2d 403, 405 (2d Cir.1987). Under PACA, a producer aggrieved by such a practice may initiate a reparation proceeding by filing a formal complaint with the Secretary. See 7 U.S.C. § 499f(a), (c); 7 C.F.R. § 47.6. If the Secretary finds for the producer, an order is entered in favor of the producer awarding compensation for its damages. See 7 U.S.C. § 499g(a). Either party may appeal the Secretary’s decision to federal district court, where the producer’s claim is tried de novo. See 7 U.S.C. § 499g(c).
The prevailing party in a reparation proceeding under PACA can recover its costs and attorney fees. See 7 C.F.R. § 47.19(d) (1989). To secure these expenses, as well as any damages awardable on a counterclaim, a foreign producer may be obliged to furnish a bond equal to double the amount of its claim. See id. § 499f(e). However, pursuant to authority delegated to the Secretary by PACA, see id., DOA regulations state that the bond requirement is waived in the following circumstance:
[T]he furnishing of a bond shall be waived if the complainant is a resident of a country which permits filing of a complaint by a resident of the United States against a citizen of that country without the furnishing of a bond.
7 C.F.R. § 47.6(b). Under both PACA and DOA regulations, a foreign complainant must either file a bond or obtain a waiver before the DOA can take “any formal action ... on [the producer’s] complaint,” 7 U.S.C. § 499f(e), including service of the complaint on the broker and docketing of the case for adjudication. See 7 C.F.R. §§ 47.6(b), (c), 47.10 (1989). The decision whether to grant a waiver request is made by the Secretary or a designated DOA staff member.
In August 1988, Exportal filed a complaint with the Secretary alleging that its United States broker had unlawfully withheld $182,000 due Exportal. Advised of PACA’s foreign-producer bond requirement, Exportal petitioned the DOA for a waiver; in support of the petition, Exportal proffered an affidavit from a Chilean attorney attesting that Chile does not require United States citizens to furnish bonds before bringing civil actions against Chileans. In a one-page letter, the Chief of the PACA Branch of the DOA rejected Exportal’s request, stating:
the wording of [PACA] gives the Secretary ... discretion over whether to waive the bond requirement, even when the complainant’s national court system allows claims by extranationals without supplying a bond.
Appendix 3. As a basis for the exercise of the Secretary’s discretion in this case, the letter cited the need to secure a potential counterclaim by Exportal’s broker. See id.
Rather than file a $364,000 bond, Expor-tal petitioned this court for review. Ex-portal maintains that under 7 C.F.R. § 47.6(b) the Secretary has no discretion to deny a waiver if the foreign producer shows that its nation’s legal system does not require United States citizens to furnish bonds. In addition to disputing this reading of the DOA’s regulations, the Secretary argues that we are without jurisdiction to entertain Exportal’s petition.
II. Analysis
A. Jurisdiction
By its terms, the Administrative Orders Review Act plainly extends to a decision denying a waiver pursuant to 7 U.S.C. § 499f(e):
the court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of—
(2) all final orders of the Secretary of Agriculture made under chapters 9 and 20A of title 7, except orders issued under sections 210(e), 217a, and 499g(a) of title 7....
28 U.S.C. § 2342 (emphasis added). The Secretary nonetheless contests jurisdiction on the ground that a decision to deny a waiver is not a “final order.” Alternatively, the Secretary maintains that Exportal should have directed its petition to the district court, because that is the court with jurisdiction over appeals from the Secretary’s reparation orders. See 7 U.S.C. § 499g(c). We disagree.
We engage in a “pragmatic” inquiry to determine whether an agency decision is a “final order” for purposes of the Administrative Orders Review Act. See New York Shipping Ass’n v. FMC, 854 F.2d 1338, 1351 (D.C.Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 866, 102 L.Ed.2d 990 (1989). The relevant questions are, first, “whether the process of administrative decisionmak-ing has reached a stage where judicial review will not disrupt the orderly process of adjudication”; and, second, “whether rights or obligations have been determined or legal consequences will flow from the agency decision.” Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 210, 27 L.Ed.2d 203 (1970); accord New York Shipping Ass’n, 854 F.2d at 1351.
There is no doubt that the process of administrative decisionmaking in this case has reached a stage where judicial review will not disrupt any adjudication under PACA. The Secretary contends that his waiver denial is not a final order because it is interlocutory in nature. However, this characterization ignores the special procedural mechanism by which the DOA decides a waiver request. Consistent with PACA, see 7 U.S.C. § 499f(e), DOA regulations provide that a foreign producer must obtain a waiver before the agency invokes any component of the adjudicatory procedures — from service of the complaint, to discovery, to a formal hearing — designed to resolve PACA claims on the merits. See 7 C.F.R. § 47.6(b). Whether a foreign producer is entitled to a waiver is determined not by an administrative law judge, but by the Secretary or designated DOA staff. In effect, DOA regulations establish a wholly independent proceeding to decide whether a foreign producer may prosecute a PACA reparation claim without filing a bond. Because DOA procedures make no provision for the re-examination of this decision, and because the waiver determination occurs completely outside the context of any PACA adjudication, judicial review of the Secretary’s decision “will not disrupt the orderly process of [any] adjudication” before the agency. Port of Boston Marine Terminal Ass’n, 400 U.S. at 71, 91 S.Ct. at 209.
The denial of a waiver also has clear legal consequences for Exportal. If Expor-tal is unable or unwilling to pay the bond, it must forego its right to avail itself of the administrative remedy contemplated by PACA. If it does furnish the bond, it must forego its qualified right, recognized by PACA and DOA regulations, not to lose the use of $364,000 during the pendency of the reparation proceeding — a deprivation that cannot be meaningfully remedied on appeal from a reparations order. We therefore have no difficulty concluding that the Secretary’s decision to deny a waiver is a “final” order for purposes of judicial review.
We also reject the Secretary’s contention that the district court has initial appellate jurisdiction over the Secretary’s decision. The Secretary bases this argument on Florida Light & Power Co. v. Lorion, 470 U.S. 729, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). The issue in that case was whether an agency decision not to initiate a license revocation proceeding came within the scope of a statute providing for court of appeals jurisdiction, under the Administrative Orders Review Act, over final orders in “licensing proceedings.” The Court answered this question affirmatively, noting that, “[i]n the absence of specific evidence of contrary congressional intent, ... orders resolving issues preliminary or ancillary to the core issue in a proceeding should be reviewed in the same forum as the final order resolving the core issue.” Id. at 743, 105 S.Ct. at 1606. The Secretary maintains that because the district court has jurisdiction over the “core” issue of whether the Secretary has properly ordered reparations against a broker under PACA, the district court should also have jurisdiction over the “preliminary” issue of whether a foreign producer is entitled to a waiver of the bond requirement.
The problem with the Secretary’s analysis is that Congress has furnished “specific evidence” of its intent that the court of appeals exercise jurisdiction over final orders disposing of “preliminary” issues in PACA reparation proceedings. The Administrative Orders Review Act expressly provides for direct (and exclusive) review in the court of appeals of every final order issued pursuant to PACA except for reparation orders. See 28 U.S.C. § 2342(2).
This division of appellate responsibility is perfectly understandable. An appeal from a reparation order is not a genuine “review” action but rather a trial de novo, see 7 U.S.C. § 499g(c), a proceeding possible only in district court. The district court, however, has no special competence to review nonreparation orders for legal error. Direct review of these orders in the court of appeals reflects the Administrative Orders Review Act’s general objective to eliminate the “duplication of effort” attendant upon successive appeals in the district court and the court of appeals based on the same Administrative Procedure Act (“APA”) standards of review. Lorion, 470 U.S. at 744, 105 S.Ct. at 1607. Indeed, if we needed to recur to rules of statutory construction to decipher Congress’ intention on where appellate jurisdiction lies in this case, we would follow the presumption against inferring “that Congress intended to depart from the sound policy of placing initial APA review in the courts of appeals.” Id. at 745, 105 S.Ct. at 1607 (emphasis added).
B. The Denial of Exportal’s Waiver Request
1. The Secretary’s Claim of Discretion under Section 47.6(b)
DOA regulations speak in categorical terms:
the furnishing of a bond shall be waived if the complainant is a resident of a country which permits filing of a complaint by a resident of the United States against a citizen of that country without the furnishing of a bond.
7 C.F.R. § 47.6(b) (emphasis added). Despite these clear terms, the Secretary contends that he retains discretion under the regulations to deny a waiver even when a foreign producer can make the showing of reciprocity that section 47.6(b) requires. Noting that PACA provides merely that “the Secretary shall have the authority to waive the furnishing of a bond” upon the requisite showing of reciprocity, 7 U.S.C. § 499f(e) (emphasis added), the Secretary maintains that section 47.6(b) should be construed to restate this permissive grant of statutory authority. Once again, we are constrained to disagree with the Secretary’s analysis.
The scope of the waiver authority delegated to the Secretary by 7 U.S.C. § 499f(e) is largely beside the point. For, even assuming that the Secretary could adopt a rule preserving his discretion to deny a waiver to a foreign producer who shows that its nation does not impose a bond requirement, the fact remains that the Secretary has adopted section 47.6(b), under which the Secretary’s discretion has been strictly limited by the plain terms of the regulation. “It is axiomatic that an agency must adhere to its own regulations .... ” Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 536 (D.C.Cir.1986) (Scalia, J.); see Accardi v. Shaughnessy, 347 U.S. 260, 265-67, 74 S.Ct. 499, 502-03, 98 L.Ed. 681 (1954). The issue, then, is whether the Secretary has faithfully applied section 47.6(b) in determining that it could reject Exportal’s waiver request notwithstanding its showing of reciprocity.
This is a question of interpretation. It is well established that a reviewing court owes deference to an agency’s construction of its own regulations. See, e.g., Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). But it is equally well established that this deference is due “only when the plain meaning of the rule itself is doubtful or ambiguous_ Deference to agency interpretations is not in order if the rule’s meaning is clear on its face.” Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C.Cir.1984); see also Udall, 380 U.S. at 16, 85 S.Ct. at 801.
Courts’ reliance on the “plain meaning” rule in this setting is not a product of some fetishistic attraction to legal “formalism.” In order to infuse a measure of public accountability into administrative practices, the APA mandates that agencies provide interested parties notice and an opportunity for comment before promulgating rules of general applicability. See 5 U.S.C. § 553(b), (c) (1988). See generally American Bus Ass’n v. United States, 627 F.2d 525, 528 (D.C.Cir.1980). This right to participate in the rulemaking process can be meaningfully exercised, however, only if the public can understand proposed rules as meaning what they appear to say. Moreover, if permitted to adopt unforeseen interpretations, agencies could constructively amend their regulations while evading their duty to engage in notice and comment procedures. As applied to agency regulations, then, the plain meaning doctrine is an interpretive norm essential to perfecting the scheme of administrative governance established by the APA. Cf. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv.L.Rev. 405, 412 (1989) (arguing that interpretation should be guided by “principles that improve the performance of modern government”).
In this case, the plain meaning of the DOA’s regulations is dispositive. Section 47.6(b) states that the bond requirement “shall be waived” if the foreign producer makes the requisite showing of reciprocity. “ ‘Shall’ is a term of legal significance, in that it is mandatory or imperative, not merely precatory.” Conoco, Inc. v. Norwest Bank Mason City, 767 F.2d 470, 471 (8th Cir.1985); see, e.g., Continental Airlines, Inc. v. Department of Transp., 856 F.2d 209, 216 (D.C.Cir.1988) (mandatory time limits for agency action); Weil v. Markowitz, 829 F.2d 166, 171 (D.C.Cir.1987) (mandatory sanctions for attorney misconduct); Association of American R.R. v. Costle, 562 F.2d 1310, 1312 (D.C.Cir.1977) (mandatory rulemaking directive). Nothing in the text of section 47.6(b) puts a reader on notice that the regulation is using “shall” in an unorthodox manner.
Conceding that his interpretation of section 47.6(b) is “anomalous,” the Secretary nonetheless resists the conclusion that his reading is foreclosed by the plain meaning rule. The Secretary notes that although the ordinary connotation of “shall” is “must,” courts construing statutes have sometimes discerned in the legislative history or structure of the statute an intention to depart from the plain meaning of this term. See, e.g., Buckley v. Valeo, 519 F.2d 821, 893 n. 191 (D.C.Cir.1975), aff'd in part and rev’d in part on other grounds, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). According to the Secretary, we should defer to his conclusion that the DOA intended “shall” to mean “may” when it promulgated section 47.6(b).
We reject this contention. As we have mentioned, we can discern no evidence that the DOA actually did intend to use “shall” to mean “may” in section 47.6(b). But even more fundamentally, we disagree with the Secretary’s suggestion that we should read section 47.6(b) as if it were a statute. We might be willing, in extraordinary circumstances, to entertain the suggestion that a legislature intended something different from what a statute appears plainly to say. See, e.g., Consolidated Rail Corp. v. United States, 896 F.2d 574, 578 (D.C.Cir.1990); Belland v. Pension Benefit Guar. Corp., 726 F.2d 839, 844 n. 6 (D.C.Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 245, 83 L.Ed.2d 183 (1984). But legislatures are not constrained by procedural requirements akin to those in the APA. To protect the integrity of these procedures, we cannot permit an agency to rely on its unexpressed intentions to trump the ordinary import of its regulatory language. Because the DOA has expressed itself in language that has a plain meaning, we look no further than the text of its rule.
In sum, section 47.6(b)’s directive that “the furnishing of a bond shall be waived ” unequivocally conveys that the Secretary must grant a waiver when the condition of reciprocity is met. Unless and until this language is amended, the DOA must abide by it.
2. Reciprocity Under Chilean Law
As an alternative ground for upholding the Secretary’s denial of Exportáis waiver request, counsel for the Secretary suggests that Exportal in fact failed to make the requisite showing of reciprocity demanded by section 47.6(b). According to counsel, a foreign producer must demonstrate not merely that its nation’s legal system does not require United States citizens to file bonds in legal proceedings, but also that the producer’s nation affords United States producers an administrative remedy analogous to PACA. Chile, the Secretary’s counsel maintains, provides no such remedy.
We cannot uphold the Secretary’s order on this basis. The DOA’s letter denying Exportáis waiver request offered only one ground for this decision: the Secretary’s alleged discretion to deny a waiver in all cases. The suggestion that Exportal failed to demonstrate reciprocity in Chilean law is merely “appellate counsels post hoc rationalization ] for agency action.” Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 2870, 77 L.Ed.2d 443 (1983).
On the record before us, we are in no position to assess any claims on the state of Chilean law. Because the Secretary disposed of Exportal’s waiver request pursuant to an asserted exercise of discretion, the DOA had no occasion to address the merits of Exportal’s showing of reciprocity. And although we do not discern in either section 47.6(b) or 7 U.S.C. § 499f(e) a requirement that the nation of a foreign complainant have a remedial scheme that precisely mirrors PACA, we will leave it to the Secretary to address this question in the first instance. Consequently, subject to appropriate review by this court, the Secretary remains free on remand to determine whether Chilean law satisfies the reciprocity requirement.
III. Conclusion
We grant Exportal’s petition for review. The determination to deny waiver of a bond prior to initiation of a PACA reparation proceeding is a “final order” under the Administrative Orders Review Act. By directing that “the furnishing of a bond shall be waived” if the nation of a foreign producer does not require United States complainants to file a bond, section 47.6(b) leaves the Secretary with no discretion to deny a waiver when the requisite condition is met. The Secretary remains free on remand, however, to address whether Ex-portal has shown that Chilean law satisfies the reciprocity requirement imposed by section 47.6(b).
It is so ordered.
. When Exportal filed its petition, Peter Myers was Acting Secretary of Agriculture. Clayton Yeutter, the current Secretary of Agriculture, has been substituted pursuant to Federal Rule of Appellate Procedure 43(c)(1).
. PACA comprises chapter 20A of title 7.
. The Secretary also suggests that its denial of Exportal’s waiver is not a final order because his ruling was not made after a hearing. However, the absence of a hearing is not an impediment to review under the Administrative Orders Review Act “when a hearing is not required by law and it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented." 28 U.S.C. § 2347(b)(2) (1982). Such is the case here.
. Of course, not all "preliminary" determinations are “final orders" for purposes of the Administrative Orders Review Act. When they are, however, initial jurisdiction resides in the court of appeals.
. We also reject the Secretary’s suggestion that we should dismiss Exportal’s petition on grounds of ripeness or exhaustion of remedies. Exportáis challenge is ripe because the Secretary has applied section 47.6(b) to Exportal, and because no further agency action is necessary to make the Secretary's decision “fit” for judicial resolution. See Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). The exhaustion of remedies doctrine poses no bar because DOA regulations afford Exportal no avenue for seeking agency review of the Secretary’s decision to deny a waiver. See Myers v. Bethlehem Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938).
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_applfrom
|
E
|
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).
ASSOCIATION OF CLERICAL EMPLOYEES OF ATCHISON, T. & S. F. RY. SYSTEM et al. v. BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS et al.
No. 5837.
Circuit Court of Appeals, Seventh Circuit.
July 8, 1936.
James E. Smith, E. H. Hatcher, and Frank H. McFarland, all of Topeka, Kan., for appellants.
Emmet Trainor and Homer W. Davis, both of Chicago, Ill. (Charles H. Woods, of Chicago, Ill., of counsel), for Railway Companies.
Frank L. Mulholland, of Toledo, Ohio, and Leo J. Hassenauer, of Chicago, Ill., for appellees, Brotherhood and others.
John Dickinson, Asst. Atty. Gen., Leo F. Tierney and Wendell Berge, Sp. Assts. to the Atty. Gen., Robert L. Stern, Sp. Atty., Department of Justice, of Washington, D. C., and Harry N. Connaughton and Earle C. Hurley, Sp. Assts. to U. S. Dist. Atty., both of Chicago, Ill., for appellee Michael L. Igoe.
Before SPARKS and ALSCHULER, Circuit Judges, and LINDLEY, District Judge.
ALSCHULER, Circuit Judge.
Appellants complain of the rulings of the District Court denying their motion for a temporary injunction, and on motion dismissing the bill.
The bill challenges the certification oi the National Mediation Board (herein called Board) that at an election called by the Board, under the Federal Railway Labor Act as amended (45 U.S.C.A. § 151 et seq.), appellee Brotherhood was chosen to represent the clerical employees of the Atchison, Topeka & Santa Fé Railway System in negotiations with their employer for agreements for wages and conditions of labor for that craft. The bill having been on motion dismissed for want of equity, it must be looked to for the facts. It charges that ever since 1927 that craft was represented in all such negotiations by appellant Association (herein called Association), it having been duly chosen therefor by the craft; that the Brotherhood had represented to the Board that a majority of the craft favored the Brotherhood’s acting in such capacity for the craft; and that the Board, finding that a dispute existed with reference to the representation, called and conducted an election of the craft to determine whom the craft favored for such representative; and that the Board found and certified that a majority of the craft were favorable to the Brotherhood, and made such certification to the craft and to the employer. Under the Railway Labor Act of 1926, as amended June 21, 1934, such finding by the Board, unless and until in some way set aside or abrogated, is binding upon the members of the craft.
The bill further charges that the certification by the Board specifies as follows:
Number of employees on the list of eligible voters ...................6,016
Number voting for representation by the Brotherhood .................2,854
Number voting for representation by the Association ..................2,793
Number voting for representation by miscellaneous individuals or other organizations .........,........... 6
Number of ballots not allocated:
(a) Blank ballots, not voted..... 21
(b) Ballots voted but improperly marked ................. 41;
That appellants objected to the votes of 22 employees at the Newton plant, but their votes were allowed and separately counted, showing:
For the Brotherhood................ 12
For the Association................ 6
For miscellaneous individuals or for other organizations............... 2
Ballots voted but improperly marked 2
The main contention of appellants is that the vote for the Brotherhood falls short of being a majority of all the members of the craft found qualified to vote, and that therefore the certification by the Board is in contravention of that part of section 2 (Fourth) of the Railway Labor Act as amended (45 U.S.C.A. § 152, subd. 4), which reads: “The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter.”
If this part of the act is to be given the construction for which appellants contend, then the Board’s finding — that the Brotherhood was the duly elected representative— was clearly improper, since the number voting for the Brotherhood falls somewhat short of a majority of the entire eligible membership, although in excess of the number voting for representation by the Association.
Language more or less similar to that of this statute — fixing the vote required to carry a given measure — has been variously construed by courts. In Missouri there was a constitutional provision that: “The General Assembly shall not authorize any county, city, or town to become a stockholder in, or to loan its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto.” Const.Mo.1865, art. 11, § 14. The General Assembly passed a statute authorizing subscriptions by townships to the capital stock of railroads whenever two-thirds of the qualified voters of the township, voting at an election called for that purpose, shall vote in favor of the proposition. Prior to the decisions in State ex rel. Woodson v. Brassfield, 67 Mo. 331, and Webb v. Lafayette County, 67 Mo. 353, it had been several times held, although no objection of unconstitutionality was raised or considered in these cases, that rights founded upon such statute were enforceable. State v. Linn County Court, 44 Mo. 504; State v. Bates County Court, 57 Mo. 70; State v. Daviess County Court, 64 Mo. 30; and several other cases. But when afterwards- the Woodson and the Webb Cases came before that court, it was decided that the constitutional requirements were not complied with unless two-thirds of all the municipalities’ qualified voters had voted affirmatively, and that the Legislature had no power to pass an act authorizing municipalities to issue their obligations upon a vote of two-thirds of those voting upon the proposition if this was less than two-thirds of all the qualified voters.
This same provision of the Missouri Constitution was considered in three cases before the United States Supreme Court. In the first, Harshman v. Bates County, 92 U.S. 569, 23 L.Ed. 747, where it was conceded that such a statute was unconstitutional, the court so held. The second case, and one which has become a leading authority for the proposition therein stated, is County of Cass v. Johnston, 95 U.S. 360, 24 L.Ed. 416. In this there was no concession of unconstitutionality, and upon full consideration of the constitutionality of the Missouri statute (Acts Mo. 1868, p. 92) authorizing the bond issue if voted by two-thirds of those voting upon the proposition, the court reversed its decision in the Harshman Case and upheld the constitutionality of the statute and the validity of the bonds issued under it. A third case thereon is Douglass v. County of Pike, 101 U.S. 677, 25 L.Ed. 968, wherein, in the face of the holding by the Missouri Supreme Court that such statutes were unconstitutional, the court adhered to its decision in County of Cass v. Johnston.
Carroll County v. Smith, 111 U.S. 556, 4 S.Ct. 539, 28 L.Ed. 517, dealing with the Mississippi Constitution, was a case almost identical with the Douglass Case, and a like result was there reached.
Appellants cite People ex rel. Davenport v. Brown et al., 11 Ill. 478, and appellees cite People ex rel. Mitchell v. Warfield, 20 Ill. 159, 160. The Brown Case was decided under a then constitutional provision that township organization might be adopted upon the favorable vote of a “majority of the voters of such county, at any general election.” At the general election, where more than 600 votes were cast, a total of 260 voted on the county seat proposition, those favoring township organization having the majority of the votes so cast. The court held that, since the Constitution required the proposition to be voted on at a general election, this indicated that the required majority in favor of removal must be of all the votes cast at that election, rather than only the votes on the proposition. In the Warfield Case the question as to the voters required to remove a county seat arose incidentally. The Constitution-specified that the removal might be made on a favorable vote of “a majority of the voters of the county.” At a special election on that proposition a majority of those who voted favored removal, but it was alleged that this was not a majority of all voters of the county, The court, while deciding the case on other grounds, stated that under this provision the favorable vote of a majority who voted at the election would carry the proposition for removal. This case was cited with approval by the United States Supreme Court in County of Cass v. Johnston.
In People ex rel. Wheaton v. Wiant, 48 Ill. 263, the court, approving what was stated in the Warfield Case, said that where an election on a proposition for removal of a county seat involved that question alone, a majority of the votes cast thereon will govern regardless of what was the number of voters qualified in the county. Although that case was disposed of on other grounds, on this proposition the' court said: “To give it a different construction, would involve an inquiry, whether there were other voters of the county who had, from any cause, abstained from voting, and this would lead to interminable inquiry, and invite contests in such elections, which would be embarrassing and baneful, if it did not destroy all of the practical benefits of laws passed under these provisions of the constitution."
We believe this reasoning might well be applied here, where the statute in question was passed to meet conditions which had at times seriously threatened the interruption of commerce between the states, and to cope with ofttimes extreme exigencies which, unless promptly and effectively met, might seriously disturb the very foundations of orderly and effective government.
The Constitution of Indiana (article 16, § 1) provides that amendments to it may be adopted by the affirmative vote of a majority of the members elected to each House at two succeeding General Assemblies, and submission to and ratification by a majority of the "electors of the State." In a number of cases in that state it had been held that this required the affirmative vote of a majority of the electors of the state rather than the majority vote of those voting upon the subject of ratification. State v. Swift, 69 Ind. 505; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; In re Boswell, 179 Ind. 292, 100 N.E. 833. But very recently the Supreme Court of that state again had the question before it, and upon review of prior decisions it decided that a constitutional amendment was duly ratified if it received a majority of those voting upon proposition, although such majority was less than a majority of all the electors of the state. In re Todd, 193 N.E. 865.
In the brief operation of the federal statute respecting election of such representatives of crafts since the adoption of the amendment of 1934, the Board had assumed that the vote of the majority of the members of the craft qualified to vote was necessary for the choosing of a representative. But shortly before this matter came before the Board, the United States District Court for the Eastern District of Virginia, Norfolk Division, on July 24, 1935, decided a case in all essential particulars involving the same question as that here under consideration, and on that date filed an exhaustive opinion holding that, under the statute as amended, a majority of the members of the craft, voting at an election called to choose a representative, was sufficient to that end, although such a majority was less in number than a majority of all who were qualified to vote, provided that all those who voted constituted a majority of those qualified to vote. System Federation No. 40, etc., v. Virginia Ry. Co. (D. C.) 11 F.Supp. 621.
In passing on the instant controversy the Board stated it was advised that this decision properly interpreted the law which governs, and that it had applied in this case the- principles as laid down by District Judge Way in that opinion. From the decree which followed Judge Way’s opinion an appeal was taken, and under date of June 18, 1936, the Circuit Court of Appeals of the Fourth Circuit, speaking by Judge Parker, filed an opinion (Virginia Ry. Co. v. System Federation No. 40, etc., 84 F.(2d) 641) sustaining the decree of the District Court as to all matters which were in issue on that appeal. The opinion presents full and lucid disposition of the propositions involved. The question of the election of a representative under the statute was the same as it is here, and the vote there presented an identical situation. The conclusion was reached that where a majority of those qualified to vote had in fact voted, a proposed representative receiving a majority of the quorum which thus voted was the duly elected representative under the statute. Upon the question of the vote necessary under the amended statute, we are in full accord with the reasoning and conclusion of the opinion of the Fourth C.C.A., as well as that of District Judge Way.
Appellants urge that because the Board had previously held that a proposed representative not receiving a majority of all those who were found qualified to vote was not chosen as a representative under the statute, the Board was equitably bound to apply here the same practice. It is charged that the Board had notified these contestants that the proposed representative receiving the vote of a majority of all the qualified voters of the craft would be the one chosen; and it is argued that in such case a member not voting, in effect votes against any change in existing conditions, wherefore nonvoting members favoring the existing representative might with impunity refrain from voting; and that it would be inequitable to apply a different interpretation of the statute without prior notice by the Board of its change in ruling. It does not appear that the notice to hold the election assumed to make any interpretation of the statute beyond quoting the words of the statute itself. The statute speaks for itself, and when judicially called in question the court must interpret it, regardless of the previous practice of the Board. The Board, though having construed it in a prior instance, is not bound to the same construction if thereafter it becomes satisfied that a different construction should be given. In a case such as this we think the general rule applies that those not voting at an election should be considered as assenting to the will of the majority there expressed. County of Cass v. Johnston, 95 U.S. 360, 24 L.Ed. 416.
But the facts do not bear out the allegation. that the qualified voters were prejudiced or misled by the alleged change in the interpretation. As has been seen, Judge Way’s decision was rendered July 24, 1935. It is not reasonable to suppose that those interested in this case were not promptly made aware of that decision, which involved a construction of the same statute under practically the same circumstances, involving the same question of construction and representation by the Board. Certain of appellees’ counsel appeared in both cases. The election here was not called until some time after that opinion had been filed. Pursuant to the notice, the election commenced September 25, 1935, and was concluded on October 18, 1935. Whether voters or counsel for the various parties were in agreement with Judge Way’s views is not material. There was at least a judicial interpretation in a similar controversy which would make more hazardous any reliance upon non-voting as equivalent to a vote to retain the existing representation. Even if the construction which the Board had-given to the statute in conducting some previous election might, under a proper state of facts. have raised an equitable estoppel, or some other equity, in favor of appellants, as contended for, in our judgment the facts alleged fall far short of raising an estoppel here.
But the Association contends that, whatever the construction of the statute, the Board improperly decided that the Brotherhood was chosen. There are involved 22 voters at the so-called Newton plant and 117 at the so-called Corwith plant. When these employees presented themselves for voting, the Association objected to their votes being received. The objection was sustained as to Corwith employees, but overruled as to the 22, who thereupon voted, their votes being separately kept so that it might appear how, if at all, the votes would affect the result, It is conceded that the 22 votes did not affect the result. If the Corwith votes had been received it would have increased the total of eligibles by 117, and if all these had voted for the Association it would have given the Association a majority over the Brotherhood. But, be this as it may, these votes were rejected on the objection of the Association, and it is now in no position to assert impropriety in their rejection, Indeed, it has not asserted there was any impropriety therein; but the contention is made that the 22 were on the same basis as the 117, and that if the 22 were received it was improper to have excluded the 117, and that, therefore, a court of equity should regard the 117 as votes which should have been received, and that had they been voted they might have changed the result, and that therefore at best the election was void.
The fact that the 22 were received can in no way affect the rejection of the 117; and the fact that the Association’s objection to the 22 was not sustained does not tend to render improper the otherwise unchallenged action of the Board in rejecting the 117. The two sets of employees were at different plants and not associated together; and while the statement in the bill — that they were in general doing the same class of work — is accepted, this does not necessarily require the conclusion that both should have had the same treatment, There may have been other sufficient reason for admitting the one and rejecting the other. But, be this as it may, the Board is vested with a large discretion, and with a power to conduct the election and to determine who are qualified to vote thereat; and in the absence of a definite shewing of fraud or other gross impropriety of the Board whereby an improper result has been certified, courts will not interfere.
It further appears that of the ballots received 21 were blank ballots and 41 were rejected because improperly marked. The Association contends that, treating all these ballots as having been cast, the Brotherhood lacked 4 votes of having a majority of the ballots which were received, and therefore it did not receive the majority necessary to election. The case of Lodoen v. City of Warren, 118 Minn. 371, 136 N. W. 1031, is cited in support of the contention. The court was there dealing with a statute (Sp.Laws 1891, c. 44, subc. 5, § 5, subd. 2) which required a certain proposition to receive a majority of the “votes cast” in order to carry it, and it was held that votes offered and received were “cast” within the purview of the statute and must be counted in determining whether a majority of votes cast was for the proposition, The statute with which we are dealing does not provide for a majority of the votes cast, but specifies that, “The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter.” We have indicated our views as to the construction to be placed on this statute, and in our judgment a blank ballot is not to be regarded in any other light than as a failure to vote by one qualified to do so. Excluding from consideration the 21 blank ballots, and treating them as though these members had not voted at all, and adding to the total vote reported the 41 rejected ballots, the Brotherhood would still have a majority of 7 of that total. It is not contended that the defectively marked ballots were improperly rejected, and the good faith or action of the Board in that respect is not challenged. Surely it was acting within the scope of its statutory authority; and although we are of the belief that under this statute ballots improperly marked and in good faith rejected should be regarded in the same light as blank ballots, or as an omission to vote of an eligible member, it is not necessary to decide this if we are correct in our conclusion respecting the blank ballots.
The order of the District Court denying the temporary injunction, and its decree dismissing the bill on motion of defendants, are affirmed.
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_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.
CARTER CARBURETOR CORPORATION v. NATIONAL LABOR RELATIONS BOARD.
No. 12282.
Circuit Court of Appeals, Eighth Circuit
Dec. 7, 1942.
William R. Gentry, of St. Louis, Mo. (N. A. Stancliffe and John L. Farrell, both of New York City, on the brief), for petitioner.'
Louis Libbin, Atty., National Labor Relations Board, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, and Gerhard P. Van Arkel, Asst. Gen. Counsel, and William T. Whitsett, A tty., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.
Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges. ___
WOODROUGH, Circuit Judge.
This,, case is before the court on petition of Carter Carburetor Corporation to review and set aside an order issued by the National Labor Relations Board pursuant to Section 10(c) of the National Labor Relations Act (49 Stat. 449, 29 U.S.C.A. § 151 et seq.). In its answer to the petition the Board has requested that its order be enforced. The findings of fact, conclusions, decision and order of the Board are reported'in 39 N.L.R.B. 1269 (Supplemental Decision and Order, 40 N.L.R. B. 631.) Among other things, the Board found that the petitioner discharged its employee Clifford Reed on March 27, 1941, and thereafter failed and refused to reinstate him because of his membership in and activity on behalf of the United Automobile Workers of America, Local 819, a labor union affiliated with the Congress of Industrial Organizations, and it was ordered that the employee be reinstated and made whole. The petitioner contended before the Examiner and before the Board, that it had discharged said Clifford Reed because “on a certain day as he was leaving his place of work and before he had gone out of the building where he was employed Reed passed one of the female employees of the petitioner and vulgarly placed his hand upon her person in a way that was highly offensive and insulting”, and for the same reason it had refused to reinstate Reed.
The only question argued in this court is whether or not the Board’s findings in, respect to the motivating cause for the discharge of Clifford Reed and the order to reinstate and make him whole should be sustained.
The testimony is voluminous and all implications favorable to petitioner’s contention have been ably and forcibly presented. They have been carefully considered in connection with our study of the evidence and certainly preclude a declaration that the Board’s finding was the only possible one. But the Board did not believe that the alleged occurrence which the petitioner assigned for its discharge of Reed was the motivating cause of Reed’s discharge. Petitioner’s long continued opposition to the unionization of its employees was clearly established and Reed had been rendered conspicuous in the unionizing effort. It was within the functions of the Board to consider and appraise the petitioner’s motives inferable from the evidence and to decide whether petitioner acted to protect its female employees or to rid itself of Reed because of his union activities.
The Board noted that “the Trial Examiner after examining exhaustively the testimony of the respondent’s and Board witnesses, came to the conclusion that Reed had not been guilty of the alleged misconduct.”. This conclusion, as shown by the Examiner’s report, was based in part upon his close observation of the attitude and demeanor of the witnesses who testified on that issue. He reported that the accusers were not impressive as witnesses but “Reed gave the conviction of frankness and force.” The Board deemed it unnecessary to make a special finding whether Reed was or was not guilty. It believed from the events surrounding the discharge that the petitioner was not interested in determining the truth of the charges against him, and it rested its finding as to the motivating cause of the discharge upon other evidentiary facts detailed in its findings.
Where, as in this case, the testimony comprises more than a thousand pages, the Board can not be required to set forth the testimony and a finding upon every disputed evidentiary fact, but may detail the evidentiary facts from which it has drawn its finding upon the ultimate fact. If our study of the evidence on this review had persuaded us that Reed was in fact guilty of the indecency, and that the petitioner so believed at the time of the discharge, such conclusion would weigh heavily in passing upon the validity of the order. But it has not.
The Board has declared that it arrived at its finding as to the motivating cause of the discharge on the basis of the entire record, and we think that neither the findings of evidentiary fact nor the finding of the ultimate fact are without substantial support in the evidence. Such findings are therefore conclusive upon this court. National Labor Relations Board v. Nevada Consolidated Copper Corporation, 316 U.S. 105, 62 S.Ct. 960, 86 L.Ed. 1305.
As it appears that the order of the Board is in all respects valid, its request for an order of enforcement is sustained.
Enforcement ordered.
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_casetyp2_geniss
|
H
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - bankruptcy, antitrust, securities - bankruptcy - business reorganization (e.g., chapter 11). 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".
In re SHELBURNE, Inc.
No. 6317.
Circuit Court of Appeals, Third Circuit.
June 24, 1937.
Emerson Richards, of Atlantic City, N. J., for appellant.
Robert A. Hall and George S. Mun-son, both of Philadelphia, Pa., and John A. McNaughton, of New York City, for Bondholders’ Protective Committee.
Lindabury, Depue & Faulks, of Newark, N. J., and White & Case, of New York City (Francis W. Thomas, of Newark, N. J., and Carlos L. Israels, of New York City, of the New York Bar, of counsel), for New York Trust Co.
James N. Butler, of Atlantic City, N. J., for Thomas H. Munyan, William C. Rommel, and Lewis B. Moffett.
Robert K. Bell, of Ocean City, N. J., for Equitable Trust Co.
William A. Carr, of Philadelphia, Pa., for Shelburne, Inc.
Before BUFFINGTON, DAVIS, and BIGGS, Circuit Judges.
BUFFINGTON, Circuit Judge.
This is an appeal from an order of the District Court, which, among other things, approved the debtor’s petition for reorganization under section 77B of the Bankruptcy Act (11 U.S.C.A. § 207); appointed trustees in bankruptcy; and authorized them, “having due respect and comity for the jurisdiction and authority of the Chancery Court of the State of New Jersey,” to take possession and manage all of the assets of the debtor.
The appellants are in possession of all of the debtor’s property as custodial receivers appointed by the Court of Chancery of New Jersey in foreclosure proceedings. They have appealed from that portion of the order which authorized the truste.es to take possession and manage the property in question. They have taken this appeal with the full approval and sanction of the Court of Chancery.
The question raised by this appeal is whether or not, under the circumstances of this case, the appellants should have been allowed to retain possession and continue in the management of the property.
The facts are as follows: Prior to 1925, Jacob Weikel was the owner of the Shelburne Hotel in Atlantic City, N. J. In 1925 he conveyed the hotel property to the debtor, Shelburne, Inc., a corporation formed under the laws of New Jersey. The debtor corporation owned no other assets and all but four shares of its common stock were owned by Weikel. The debtor, in order to make certain desired improvements to the hotel, issued a first mortgage for $3,000,000 of which the New York Trust Company was made trustee; a second mortgage for $500,000 of which the equitable Trust Company of Atlantic City was made trustee, and also issued $164,000 of preferred stock. Approximately $378,500 has been paid on the principal of the first mortgage; $30,000 has been paid on the principal of the second mortgage; and additional money totalling $20,000 has been deposited with the Equitable Trust Company under the second mortgage.
By July, 1931, the first mortgage was in default because of nonpayment of taxes, interest, and amortization. On July 13, 1931, the New York Trust Company filed a bill in the Court of Chancery to foreclose the mortgage, and prayed that custodial receivers be appointed to take over the property, operate it, and collect the rents, issues, and profits thereof as provided in the mortgage. The petition was granted; the appellants were appointed receivers with the above-mentioned powers; and the debt- or, its officers, directors, agents, and employees were enjoined from interfering with the receivers in their management of the property. As it owned no other property, the debtor has not transacted any business nor held any meetings of its directors or stockholders since that time.
On January 2, 1932, the Governor of New Jersey revoked the charter of the debtor because of arrears in taxes.
On June 29, 1933, the Court of Chancery entered a decree of foreclosure, and decreed that $2,998,933.73 was due under the mortgage. It also entered an order directing a special master to sell the property in satisfaction of the mortgage debt. No sale, however, was made and the receivers have remained in the possession and management of the property.
In May, 1935, three petitions for reorganization under section 77B of the Bankruptcy Act were successively filed in the District Court. The first was withdrawn by consent, the second was dismissed after argument and the court, after amendment and the restoration of the charter upon the payment of $100, over the objection of appellants ordered the third petition to be filed and appointed trustees as above stated. From a portion of that order appeal has been taken to this court.
As mentioned above, the only portion of the order to which the appellants object is that part which directed the trustees to take possession of the property then in their hands. They have no objections to the proposed reorganization as such.
Custodial receivers in foreclosure proceedings, under the law of New Jersey, hold possession for the mortgagee. Stewart v. Fairchild-Baldwin Company, 91 N.J.Eq., 86, 108 A. 301; Bermes v. Kelley, 108 N.J.Eq. 289, 154 A. 860; New York Trust Company v. Shelburne, Inc., 110 N.J.Eq. 187, 159 A. 522, affirmed 112 N.J.Eq. 170; 163 A. 892. A court of bankruptcy does( not have the power summarily to order a mortgagee in possession or receivers in foreclosure to turn over mortgaged property to a trustee in bankruptcy. Continental Bank & Trust Company v. Nineteenth & Walnut Streets Corporation, 79 F.(2d) 284 (C.C.A.3) ; In re Frances Willard National Temperance Hospital, 82 F.(2d) 804, 806 (C.C.A.7); Duparquet Co. v. Evans, 297 U.S. 216, 56 S.Ct. 412, 415, 80 L.Ed. 591. In the Duparquet Case, 297 U.S. 216, on ’pages 222 and 223, 56 S.Ct. 412, 80 L.Ed. 591, the court said: “It is common learning that an equity receiver in suits to conserve the assets or divide them among creditors must yield to a trustee in bankruptcy. * * * On the other hand, it is also common learning that not even a trustee in bankruptcy may override a valid mortgage lien or supersede a receiver who has been put into possession in fulfilment of the mortgage contract. * * * Section 77B does not make these precedents in-apposite. True, the suit for the foreclosure of the mortgage may be stayed or enjoined upon a showing of necessity, (section 77B (c) (10), 11 U.S.C.A. § 207 (c) (10); the lien may be transferred to the proceeds of a sale (section 77B (b), 11 U.S.C.A. § 207 (b) ; at times the holder of the lien may have his security modified or reduced by the plan of reorganization when finally approved (section 77B (b), (e), (f), (h), 11 U.S.C.A. § 207 (b, e, f, h). * * * Nowhere does the statute say, however, that those results or any of them shall follow automatically upon the approval of the petition as properly filed. Section 77B (a). Only by excluding a receiver in foreclosure from the scope of subdivision (i) can we avoid anomalous encroachments upon vested rights and interests.”
Furthermore, at this phase of the proceedings,' there is considerable doubt whether or not a valid feasible plan of reorganization is possible. In the first place, the property covered by the mortgage is-alleged to be worth approximately $1,000,000 while the money due on the first mortgage alone is around $3,000,000. It is hard to see what equity the debtor has in the premises under these circumstances. In the second place, there is doubt at this time as to the validity of the consents of the bondholders as filed with the bondholders’ committee. This doubt was expressed by the Court of Chancery in a statement filed by it with this court in the following words: “Again, the bondholders’ committee have been functioning as such for upwards of five years and it may well be that consents of bondholders lodged with that committee that long ago may not be said to be consents that the then committee should bind the individual bondholders to a plan of reorganization under 77B, especially in view of the fact that there was no such enactment that long ago.”
Under the facts of this case, the authorities above cited, and in order to avoid an unseemly conflict between state' courts and federal courts, it is apparent that the appellants should be allowed to continue in the possession and management of the mortgaged property until a valid plan of reorganization is presented, accepted and approved in accordance with the terms of section 77B or the default is in some way cured.
“This ruling,” as was said by Judge Sparks, speaking for the Circuit Court of Appeals for the Seventh Circuit, in the case of.In re Frances E. Willard National. Temperance Hospital, supra, “need not necessarily prevent further proceedings in the reorganization plan. Whatever interest or right the debtor may yet have in, or with respect to, the mortgaged premises, should of course be considered as an asset for whatever it is worth. We merely hold that under the conditions here presented appellant is entitled to possession of the premises until the default is in some manner cured.”
That part of the order of the District Court which directs the trustees to take possession of the mortgaged property is reversed, but the other parts are affirmed.
Question: What is the second general issue in the case, other than economic activity and regulation - bankruptcy, antitrust, securities - bankruptcy - business reorganization (e.g., chapter 11)?
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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sc_casesource
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120
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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.
UNITED STATES v. ROBEL.
No. 8.
Argued November 14, 1966.
Reargued October 9, 1967.
Decided December 11, 1967.
Kevin T. Maroney reargued the cause for the United States. With him on the brief on reargument were Solicitor General Marshall, Assistant Attorney General Yeagley, John S. Martin, Jr., and Lee B. Anderson, and on the original argument Solicitor General Marshall, Assistant Attorney General Yeagley, Nathan Lewin and Mrs. Anderson.
John J. Abt reargued the cause for appellee. With him on the briefs on the original argument and on the reargument were John Caughlcm and Joseph Forer.
John J. Sullivan, Marvin M. Karpatkin and Melvin L. Wulf filed a brief on the original argument for the American Civil Liberties Union et al., as amici curiae, urging affirmance.
Mr. Chief Justice Warren
delivered the opinion of the Court.
This appeal draws into question the constitutionality of §5 (a)(1)(D) of the Subversive Activities Control Act of 1950, 64 Stat. 992, 50 U. S. C. § 784 (a)(1)(D), which provides that, when a Communist-action organization is under a final order to register, it shall be unlawful for any member of the organization “to engage in any employment in any defense facility.” In Communist Party v. Subversive Activities Control Board, 367 U. S. 1 (1961), this Court sustained an order of the SACB requiring the Communist Party of the United States to register as a Communist-action organization under the Act. The Board’s order became final on October 20, 1961. At that time appellee, a member of the Communist Party, was employed as a machinist at the Seattle, Washington, shipyard of Todd Shipyards Corporation. On August 20, 1962, the Secretary of Defense, acting under authority delegated by § 5 (b) of the Act, designated that shipyard a “defense facility.” Appellee’s continued employment at the shipyard after that date subjected him to prosecution under § 5 (a)(1)(D), and on May 21, 1963, an indictment was filed charging him with a violation of that section. The indictment alleged in substance that appellee had “unlawfully and willfully engage [d] in employment” at the shipyard with knowledge of the outstanding order against the Party and with knowledge and notice of the shipyard’s designation as a defense facility by the Secretary of Defense. The United States District Court for the Western District of Washington granted appellee’s motion to dismiss the indictment on October 4, 1965. To overcome what it viewed as a “likely constitutional infirmity” in § 5 (a) (1)(D), the District Court read into that section “the requirements of active membership and specific intent.” Because the indictment failed to allege that appellee’s Communist Party membership was of that quality, the indictment was dismissed. The Government, unwilling to accept that narrow construction of § 5 (a)(1)(D) and insisting on the broadest possible application of the statute, initially took its appeal to the Court of Appeals for the Ninth Circuit. On the Government’s motion, the case was certified here as properly a direct appeal to this Court under 18 U. S. C. § 3731. We noted probable jurisdiction. 384 U. S. 937. We affirm the judgment of the District Court, but on the ground that § 5 (a) (1)(D) is an unconstitutional abridgment of the right of association protected by the First Amendment.
We cannot agree with the District Court that § 6 (a) (1)(D) can be saved from constitutional infirmity by limiting its application to active members of Communist-action organizations who have the specific intent of furthering the unlawful goals of such organizations. The District Court relied on Scales v. United States, 367 U. S. 203 (1961), in placing its limiting construction on § 5 (a) (1)(D). It is true that in Scales we read the elements of active membership and specific intent into the membership clause of the Smith Act. However, in Aptheker v. Secretary of State, 378 U. S. 500 (1964), we noted that the Smith Act’s membership clause required a defendant to have knowledge of the organization’s illegal advocacy, a requirement that “was intimately connected with the construction limiting membership to ‘active’ members.” Id., at 511, n. 9. Aptheker involved a challenge to § 6 of the Subversive Activities Control Act, 50 U. S. C. § 785, which provides that, when a Communist organization is registered or under a final order to register, it shall be unlawful for any member thereof with knowledge or notice thereof to apply for a passport. We held that “[t]he clarity and preciseness of the provision in question make it impossible to narrow its indiscriminately cast and overly broad scope without substantial rewriting.” Id., at 515. We take the same view of § 5 (a)(1)(D). It is precisely because that statute sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership, that it runs afoul of the First Amendment.
In Aptheker, we held § 6 unconstitutional because it too broadly and indiscriminately infringed upon constitutionally protected rights. The Government has argued that,, despite the overbreadth which is obvious on the face of §5 (a)(1)(D), Aptheker is not controlling in this case because the right to travel is a more basic freedom than the right to be employed in a defense facility. We agree that Aptheker is not controlling since it was decided under the Fifth Amendment. But we cannot agree with the Government’s characterization of the essential issue in this case. It is true that the specific disability imposed by §5 (a)(1)(D) is to limit the employment opportunities of those who fall within its coverage, and such a limitation is not without serious constitutional implications. See Greene v. McElroy, 360 U. S. 474, 492 (1959). But the operative fact upon which the job disability depends is the exercise of an individual’s right of association, which is protected by the provisions of the First Amendment. Wherever one would place the right to travel on a scale of constitutional values, it is clear that those rights protected by the First Amendment are no less basic in our democratic scheme.
The Government seeks to defend the statute on the ground that it was passed pursuant to Congress’ war power. The Government argues that this Court has given broad deference to the exercise of that constitutional power by the national legislature. That argument finds support in a number of decisions of this Court. However, the phrase “war power” cannot be invoked as a talismanic incantation to support any exercise of congressional power which can be brought within its ambit. “[E]ven the war power does not remove constitutional limitations safeguarding essential liberties.” Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 426 (1934). More specifically in this case, the Government asserts that §5 (a)(1)(D) is an expression “of the growing concern shown by the executive and legislative branches of government ovér the risks of internal subversion in plants on which the national defense depend[s].” Yet, this concept of “national defense” cannot be deemed an end in itself, justifying any exercise of legislative power-designed to promote such a goal. Implicit in the term “national defense” is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties — the freedom of association — which makes the defense of the Nation worthwhile.
When Congress’ exercise of one of its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our “delicate and difficult task” to determine whether the resulting restriction on freedom can be tolerated. See Schneider v. State, 308 U. S. 147, 161 (1939). The Government emphasizes that the purpose of § 5 (a) (1) (D) is to reduce the threat of sabotage and espionage in the Nation’s defense plants. The Government’s interest in such a prophylactic measure is not insubstantial. But it cannot be doubted that the means chosen to implement that governmental purpose in this instance cut deeply into the right of association. Section 5 (a)(1)(D) put appellee to the choice of surrendering his organizational affiliation, regardless of whether his membership threatened the security of a defense facility, or giving up his job. When appellee refused to make that choice, he became subject to a possible criminal penalty of five years’ imprisonment and a $10,000 fine. The statute quite literally establishes guilt by association alone, without any need to establish that an individual’s association poses the threat feared by the Government in proscribing it. The inhibiting effect on the exercise of First Amendment rights is clear.
It has become axiomatic that “[precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U. S. 415, 438 (1963); see Aptheker v. Secretary of State, 378 U. S. 500, 512-513; Shelton v. Tucker, 364 U. S. 479, 488 (1960). Such precision is notably lacking in §5 (a)(1)(D). That statute casts its net across a broad range of associational activities, indiscriminately trapping membership which can be constitutionally punished and membership which cannot be so proscribed. It is made irrelevant to the statute’s operation that an individual may be a passive or inactive member of a designated organization, that he may be unaware of the organization’s unlawful aims, or that he may disagree with those unlawful aims. It is also made irrelevant that an individual who is subject to the penalties of § 5 (a)(1)(D) may occupy a nonsensitive position in a defense facility. Thus, §5 (a)(1)(D) contains the fatal defect of overbreadth because it seeks to bar employment both for association which may be proscribed and for association which may not be proscribed consistently with First Amendment rights. See Elfbrandt v. Russell, 384 U. S. 11; Aptheker v. Secretary of State, supra; NAACP v. Alabama ex rel. Flowers, 377 U. S. 288 (1964); NAACP v. Button, supra. This the Constitution will not tolerate.
We are not unmindful of the congressional concern over the danger of sabotage and espionage in national defense industries, and nothing we hold today should be read to deny Congress the power under narrowly drawn legislation to keep from sensitive positions in defense facilities those who would use their positions to disrupt the Nation’s production facilities. We have recognized that, while the Constitution protects against invasions of individual rights, it does not withdraw from the Government the power to safeguard its vital interests. Kennedy v. Mendoza-Martinez, 372 U. S. 144, 160 (1963). Spies and saboteurs do exist, and Congress can, of course, prescribe criminal penalties for those who engage in espionage and sabotage. The Government can deny access to its secrets to those who would use such information to harm the Nation. And Congress can declare sensitive positions in national defense industries off limits to those who would use such positions to disrupt the production of defense materials. The Government has told us that Congress, in passing §5 (a)(1)(D), made a considered judgment that one possible alternative to that statute— an industrial security screening program — would be inadequate and ineffective to protect against sabotage in defense facilities. It is not our function to examine the validity of that congressional judgment. Neither is it our function to determine whether an industrial security screening program exhausts the possible alternatives to the statute under review. We are concerned solely with determining whether the statute before us has exceeded the bounds imposed by the Constitution when First Amendment rights are at stake. The task of writing legislation which will stay within those bounds has been committed to Congress. Our decision today simply recognizes that, when legitimate legislative concerns are expressed in a statute which imposes a substantial burden on protected First Amendment activities, Congress must achieve its goal by means which have a “less drastic” impact on the continued vitality of First Amendment freedoms. Shelton v. Tucker, supra; cf. United States v. Brown, 381 U. S. 437, 461 (1965). The Constitution and the basic position of First Amendment rights in our democratic fabric demand nothing less.
Affirmed.
Mr. Justice Marshall took no part in the consideration or decision of this case.
The Act was passed over the veto of President Truman. In his veto message, President Truman told Congress, “The Department of Justice, the Department of Defense, the Central Intelligence Agency, and the Department of State have all advised me that the bill would seriously damage the security and the intelligence operations for which they are responsible. They have strongly expressed the hope that the bill would not become law.” H. R. Doc. No. 708, 81st Cong., 2d Sess., 1 (1950).
President Truman also observed that “the language of the bill is so broad and vague that it might well result in penalizing the legitimate activities of people who are not Communists at all, but loyal citizens.” Id., at 3.
Section 3 (3) (a) of the Act, 50 U. S. C. §782 (3) (a), defines a “Communist-action organization” as:
“any organization in the United States (other than a diplomatic representative or mission of a foreign government accredited as such by the Department of State) which (i) is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement . . . and (ii) operates primarily to advance the objectives of such world Communist movement . . . .”
The Government has persisted in this view in its arguments to this Court. Brief for the Government 48-56.
We initially heard oral argument in this case on November 14, 1966. On June 5, 1967, we entered the following order:
“Case is restored to the calendar for reargument and counsel are directed to brief and argue, in addition to the questions presented, the question whether the delegation of authority to the Secretary of Defense to designate 'defense facilities’ satisfies pertinent constitutional standards.” 387 U. S. 939.
We heard additional arguments on October 9, 1967.
In addition to arguing that §5 (a)(1)(D) is invalid under the First Amendment, appellee asserted the statute was also unconstitutional because (1) it offended substantive and procedural due process under the Fifth Amendment; (2) it contained an unconstitutional delegation of legislative power to the Secretary of Defense; and (3) it is a bill of attainder. Because we agree that the statute is contrary to the First Amendment, we find it unnecessary to consider the other constitutional arguments.
18 U. S. C. § 2385.
Our decisions leave little doubt that the right of association is specifically protected by the First Amendment. E. g., Aptheker v. Secretary of State, supra, at 507; Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539, 543 (1963); Bates v. City of Little Bock, 361 U. S. 516, 522-523 (1960); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460 (1958). See generally Emerson, Freedom of Association and Freedom of Expression, 74 Yale L. J. 1 (1964).
See, e. g., Lichter v. United States, 334 U. S. 742, 754-772 (1948); Hirabayashi v. United States, 320 U. S. 81, 93 (1943).
Brief for the Government 15.
The appellee has worked at the shipyard, apparently without incident and apparently without concealing his Communist Party membership, for more than 10 years. And we are told that, following appellee’s indictment and arrest, “he was released on his own recognizance, and immediately returned to his job as a machinist at the Todd Shipyards, where he has worked ever since.” Brief for Ap-pellee 6, n. 8. As far as we can determine, appellee is the only individual the Government has attempted to prosecute under §5 (a)(1)(D).
We recognized in Greene v. McElroy, 360 U. S., at 492, that “the right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the ‘liberty’ and ‘property’ concepts of the Fifth Amendment.”
50 U. S. C. § 794 (c).
The Government has insisted that Congress, in enacting §5 (a)(1)(D), has not sought “to punish membership in ‘Communist-action’ . . . organizations.” Brief for the Government 53. Rather, the Government asserts, Congress has simply sought to regulate access to employment in defense facilities. But it is clear the employment disability is imposed only because of such membership.
See Scales v. United, States, 367 U. S. 203 (1961).
See Elfbrandt v. Russell, 384 U. S. 11 (1966).
A number of complex motivations may impel an individual to align himself with a particular organization. See Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539, 562-565 (1963) (concurring opinion). It is for that reason that the mere presence of an individual’s name on an organization's membership rolls is insufficient to impute to him the organization’s illegal goals.
See Cole v. Young, 351 U. S. 536, 546 (1956): “[I]t is difficult to justify summary suspensions and unreviewable dismissals on loyalty grounds of employees who are not in ‘sensitive’ positions and who are thus not situated where they could bring about any discernible adverse effects on the Nation’s security.”
Congress has already provided stiff penalties for those who conduct espionage and sabotage against the United States. 18 U. S. C. §§792-798 (espionage); §§2151-2156 (sabotage).
The Department of Defense, pursuant to Executive Order 10865, as amended by Executive Order 10909, has established detailed procedures for screening those working in private industry who, because of their jobs, must have access to classified defense information. 32 CFB, Part 155. The provisions of those regulations are not before the Court in this case.
It has been suggested that this case should be decided by “balancing” the governmental interests expressed in §5 (a)(1)(D) against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. Faced with a clear conflict between a federal statute enacted in the interests of national security and an individual’s exercise of his First Amendment rights, we have confined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. In making this determination we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment. But we have in no way “balanced” those respective interests. We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict. There is, of course, nothing novel in that analysis. Such a course of adjudication was enunciated by Chief Justice Marshall when he declared: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” M’Culloch v. Maryland, 4 Wheat. 316, 421 (1819) (emphasis added). In this case, the means chosen by Congress are contrary to the “letter and spirit” of the First Amendment.
Question: What is the court whose decision the Supreme Court reviewed?
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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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sc_lcdisposition
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C
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
REITER v. SONOTONE CORP. et al.
No. 78-690.
Argued April 25, 1979 —
Decided June 11, 1979
Burger, C. J., delivered the opinion of the Court, in which all other Members joined, except BreNNAN, J., who took no part in the decision of the case. RehNQUist, J., filed a concurring opinion, post, p. 345.
John E. Thomas argued the cause and filed a brief for petitioner.
Julian R. Wilheim and Elliot S. Kaplan argued the cause for respondents. With them on the brief were Fred L. Wood-worth, Joseph C. Basta, and Deborah J. Palmer.
Assistant Attorney General Shenefield argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General McCree, Deputy Solicitor General Easterbrook, Stephen M. Shapiro, Barry Gross-man, and Bruce E. Fein. Warren Spannaus, Attorney General of Minnesota, argued the cause for the States of Alabama et al. as amici curiae urging reversal. With him on the brief were Richard B. Allyn, Solicitor General of Minnesota, Alan H. Maclin, Stephen P. Kilgruff, and Thomas Kenyon, Special Assistant Attorneys General; and John Ashcroft, Attorney General of Missouri, Walter O. Theiss, Assistant Attorney General, and Roger Bern; joined by other officials for their respective States as follows: Charles A. Graddick, Attorney General, for Alabama; Avrum M. Gross, Attorney General, and Mark E. Ashburn, Assistant Attorney General, for Alaska; Robert K. Corbin, Attorney General, and Kenneth R. Reed for Arizona; Steve Clark, Attorney General, and Royce O. Griffin, Jr., Deputy Attorney General, for Arkansas; George Deukmejian, Attorney General, Warren J. Abbott, Assistant Attorney General, and Linda L. Tedeschi, Deputy Attorney General, for California; J. D. MacFarlane, Attorney General, B. Lawrence Theis, First Assistant Attorney General, and William E. Walters, Assistant Attorney General, for Colorado; Carl R. Afelio, Attorney General, Gerard J. Dowling and Larry H. Evans, Assistant Attorneys General, for Connecticut; Richard S. Gebelein, Attorney General, and William E. Kirk III, Assistant Attorney General, for Delaware; Jim Smith, Attorney General, Charles R. Ranson, Special Assistant Attorney General, and Douglas C. Kearney, Assistant Attorney General, for Florida; Wayne Minami, Attorney General, and Thomas T. Wood, Deputy Attorney General, for Hawaii; David H. Leroy, Attorney General, and Mike Brassey, Deputy Attorney General, for Idaho; William J. Scott, Attorney General, for Illinois; Theodore L. Sendak, Attorney General, for Indiana; Thomas J. Miller, Attorney General, and Gary H. Swanson, Assistant Attorney General, for Iowa; Robert T. Stephan, Attorney General, and Wayne E. Hundley, Deputy Attorney General, for Kansas; Robert F. Stephens, Attorney General, and James M. Ringo, Assistant Attorney General, for Kentucky; William J. Guste, Jr., Attorney General, and John R. Flowers, Jr., Assistant Attorney General, for Louisiana; Richard S. Cohen, Attorney General, and Cheryl Harrington, Assistant Attorney General, for Maine; Stephen H. Sachs, Attorney General, and Charles O. Monk II, Assistant Attorney General, for Maryland; Francis X. Bellotti, Attorney General, Paula W. Gold, Assistant Attorney General, and Steven J. Greenfogel for Massachusetts; Frank J. Kelley, Attorney General, and Edwin M. Bladen, Assistant Attorney General, for Michigan; A. F. Summer, Attorney General, and Marshall G. Bennett, Assistant Attorney General, for Mississippi; Mike T. Greely, Attorney General, and Jerome J. Cate, Assistant Attorney General, for Montana; Paul L. Douglas, Attorney General, and Robert F. Bartle and Paul E. Hofmeister, Assistant Attorneys General, for Nebraska; Richard H. Bryan, Attorney General, for Nevada; Thomas D. Rath, Attorney General, for New líampshire; John J. Degnan, Attorney General, and Alfred J. Luciani for New Jersey; Jeff Bingham, Attorney General, and James J. Wechsler, Assistant Attorney General, for New Mexico; Robert Abrams, Attorney General, and John M. Desiderio, Assistant Attorney General, for New York; Rufus L. Edmisten, Attorney General, Howard A. Kramer, Deputy Attorney General, and David S. Crump, Special Deputy Attorney General, for North Carolina; Allen I. Olson, Attorney General, and Dale V. Sandstrom and Terry L. Adkins, Assistant Attorneys General, for North Dakota; William J. Brown, Attorney General, and Eugene F. McShane and Richard M. Firestone, Assistant Attorneys General, for Ohio; Jan Eñe Cartwright, Attorney General, and Manville J. Buford, Assistant Attorney General, for Oklahoma; James A. Redden, Attorney General, and James Kirkham Johns for Oregon; Edward G. Biester, Jr., Attorney General, and Norman J. Watkins and John L. Shearburn, Deputy Attorneys General, for Pennsylvania; Dennis J. Roberts II, Attorney General, and Patrick J. Quinlan, Special Assistant Attorney General, for Rhode Island; Daniel R. McLeod, Attorney General, for South Carolina; Mark V. Meierhenry, Attorney General, and James E. McMahon, Assistant Attorney General, for South Dakota; William M. Leech, Jr., Attorney General, and William J. Haynes, Jr., Deputy Attorney General, for Tennessee; Mark White, Attorney General, for Texas; Robert B. Hansen, Attorney General, and Andrew W. Buffmire, Assistant Attorney General, for Utah; M. Jerome Diamond, Attorney General, and Jay I. Ashman, Assistant Attorney General, for Vermont; Marshall Coleman, Attorney General, and Joseph W. Kaestner, Assistant Attorney General, for Virginia; Slade Gorton, Attorney General, Thomas L. Boeder, Senior Assistant Attorney General, and Earle J. Hereford, Jr., Assistant Attorney General, for Washington; Chauncey H. Browning, Jr., Attorney General, and Charles G. Brown, Deputy Attorney General, for West Virginia; Bronson C. La Follette, Attorney General, and Michael L. Zaleski, Assistant Attorney General, for Wisconsin; and John D. Troughton, Attorney General, Peter J. Mulvaney, Deputy Attorney General, and James W. Gusea, Assistant Attorney General, for Wyoming.
David Berger, H. Laddie Montague, Jr., Merrill G. Davidoff, Stanley J. Friedman, Frederick P. Furth, Thomas B. Fahrner, Aaron M. Fine, and Josef D. Cooper filed a brief for the plaintiffs in Kennedy Smith v. Toyota Motor Sales U. S. A. et al. as amici curiae urging reversal.
Mr. Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to decide whether consumers who pay a higher price for goods purchased for personal use as a result of antitrust violations sustain an injury in their “business or property” within the meaning of § 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15.
I
Petitioner brought a class action on behalf of herself and all persons in the United States who purchased hearing aids manufactured by five corporations, respondents here. Her complaint alleges that respondents have committed a variety of antitrust violations, including vertical and horizontal price fixing. Because of these violations, the complaint alleges, petitioner and the class of persons she seeks to represent have been forced to pay illegally fixed higher prices for the hearing aids and related services they purchased from respondents’ retail dealers. Treble damages and injunctive relief are sought under §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U. S. C. §§ 15 and 26.
Respondents moved for dismissal of the complaint or summary judgment in the District Court. Among other things, respondents argued that Reiter, as a retail purchaser of hearing aids for personal use, lacked standing to sue for treble damages under § 4 of the Clayton Act because she had not been injured in her “business or property” within the meaning of the Act.
The District Court held that under § 4 a retail purchaser is injured in “property” if the purchaser can show that antitrust violations caused an increase in the price paid for the article purchased. The District Court relied on Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390, 396 (1906), and the legislative history of the Clayton Act set forth in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 486 n. 10 (1977), indicating that Congress intended to give a § 4 remedy to consumers. 435 F. Supp. 933, 935-938 (Minn. 1977).
The District Court determined, however, that the respondents had raised a “controlling question of law as to which there is substantial ground for difference of opinion,” id., at 938, and accordingly certified the question for interlocutory review under 28 U. S. C. § 1292 (b). It then stayed further proceedings in the case and declined to express any opinion on the merits of the other issues raised by respondents’ motions or on the certifiability of the class.
The Court of Appeals reversed, holding that retail purchasers of consumer goods and services who allege no injury of a commercial or business nature are not injured in their “business or property” within the meaning of § 4. 579 F. 2d 1077 (CA8 1978). Noting the absence of any holdings on this precise issue by this Court or other courts of appeals, the court reasoned that the phrase “business or property” was intended to limit standing to those engaged in commercial ventures. It relied on the legislative history and this Court’s statement in Hawaii v. Standard Oil Co., 405 U. S. 251, 264 (1972), that “business or property” referred to “commercial interests or enterprises.” A contrary holding, the Court of Appeals observed, would add a substantial volume of litigation to the already strained dockets of the federal courts and could be used to exact unfair settlements from retail businesses. Small and medium-sized retailers would be especially hard hit by “gigantic consumer class actions,” and granting standing to retail consumers might actually have an anticompeti-tive impact as a consequence. Accordingly, the Court of Appeals thought “it sensible as a matter of policy and compelled as a matter of law that consumers alleging no injury of a commercial or competitive nature are not injured in their property under section 4 of the Clayton Act.” 579 F. 2d, at 1087.
We granted certiorari, 439 U. S. 1065 (1979). We reverse.
II
As is true in every case involving the construction of a statute, our starting point must be the language employed by Congress. Section 4 of the Clayton Act, 38 Stat. 731, provides:
“Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States . . . without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 15 U. S. C. § 15 (emphasis added).
On its face, § 4 contains little in the way of restrictive language. In Pfizer Inc. v. Government of India, 434 U. S. 308 (1978), we remarked:
“ ‘The Act is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated.’ Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 236; cf. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 138-139. And the legislative history of the Sherman Act demonstrates that Congress used the phrase 'any person’ intending it to have its naturally broad and inclusive meaning. There was no mention in the floor debates of any more restrictive definition.” Id., at 312.
Similarly here, the word “property” has a naturally broad and inclusive meaning. In its dictionary definitions and in common usage “property” comprehends anything of material value owned or possessed. See, e. g., Webster’s Third New International Dictionary 1818 (1961). Money, of course, is a form of property.
Respondents protest that, if the reference to “property” in § 4 means “money,” the term “business” then becomes superfluous, for every injury in one’s business necessarily involves a pecuniary injury. They argue that if Congress wished to permit one who lost only money to bring suit under § 4, it would not have used the restrictive phrase “business or property” ; rather, it would have employed more generic language akin to that of § 16, for example, which provides for injunctive relief against.any “threatened loss or damage.” 15 U. S. C. § 26. Congress plainly intended to exclude some category of injury in choosing the phrase “business or property” for § 4. Only a “commercial interest” gloss, they argue, both gives the phrase the restrictive significance intended for it and at the same time gives independent significance to the word “business” and the word “property.” The argument of respondents is straightforward: the phrase “business or property” means “business activity or property related to one’s business.” Brief for Respondents 11 n. 7.
That strained construction would have us ignore the disjunctive “or” and rob the term “property” of its independent and ordinary significance; moreover, it would convert the noun “business” into an adjective. In construing a statute we are obliged to give effect, if possible, to every word Congress used. United States v. Menasche, 348 U. S. 528, 538-539 (1955). Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise; here it does not. See FCC v. Pacifica Foundation, 438 U. S. 726, 739-740 (1978). Congress’ use of the word “or” makes plain that “business” was not intended to modify “property,” nor was “property” intended to modify “business.”
When a commercial enterprise suffers a loss of money it suffers an injury in both its “business” and its “property.” But neither term is rendered redundant by recognizing that a consumer not engaged in a “business” enterprise, but rather acquiring goods or services for personal use, is injured in “property” when the price of those goods or services is artificially inflated by reason of the anticompetitive conduct complained of. The phrase “business or property” also retains restrictive significance. It would, for example, exclude personal injuries suffered. E. g., Hamman v. United States, 267 F. Supp. 420, 432 (Mont. 1967). Congress must have intended to exclude some class of injuries by the phrase “business or property.” But it taxes the ordinary meaning of common terms to argue, as respondents do, that a consumer’s monetary injury arising directly out of a retail purchase is not comprehended by the natural and usual meaning of the phrase “business or property.” We simply give the word “property” the independent significance to which it is entitled in this context. A consumer whose money has been diminished by reason of an antitrust violation has been injured “in his . . . property” within the meaning of § 4.
Indeed, this Court indicated as much in Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390 (1960). There the city alleged that the anticompetitive conduct of the defendants had caused the city to pay more for water pipes purchased for use in the city’s water system. The defendants answered that the pecuniary injury resulting from the alleged overcharges did not injure the city in its “business or property” within the meaning of § 4. This Court, without relying on the fact that the city was engaged in a business enterprise, stated:
“The city was . . . injured in its property, at least, if not in its business of furnishing water, by being led to pay more than the worth of the pipe. A person whose property is diminished by a payment of money wrongfully induced is injured in his property.” 203 U. S., at 396.
The holding of Chattanooga Foundry could well have been grounded on the undisputed fact that the city was engaged in the commercial enterprise of supplying water for a charge and, therefore, engaged in a business. It was not uncommon for both municipalities and private companies to own and operate competing waterworks at the turn of the century. In operating a municipal public utility, the city was in a real sense engaged in the “business of furnishing water” when it purchased the pipe to carry water from the city’s reservoirs to its customers. Ibid.
Yet, the Court’s holding in Chattanooga Foundry was deliberately grounded on the premise that the city had been injured in its “property” — independent of any injury it had sustained in its “business of furnishing water”' — because the defendants’ antitrust violation caused it to pay a higher price for the pipe than it otherwise would have paid. Ibid. Chattanooga Foundry therefore establishes that monetary injury, standing alone, may be injury in one’s “property” within the meaning of § 4. Thus, the fact that petitioner Reiter was deprived of only money, albeit a modest amount, is no reason to conclude that she did not sustain a “property” injury.
Nor does her status as a “consumer” change the nature of the injury she suffered or the intrinsic meaning of “property” in § 4. That consumers of retail goods and services have standing to sue under § 4 is implicit in our decision in Goldfarb v. Virginia State Bar, 421 U. S. 773, 780, 782 (1975). There we held that a bar association was subject to a treble-damages suit brought under § 4 by persons who sought legal services in connection with the purchase of a residence. Furthermore, we have often referred to “consumers” as parties entitled to seek damages under § 4 without intimating that consumers of goods and services purchased for personal rather than commercial use were in any way foreclosed by the statutory language from asserting an injury in their “property.” E. g., Pfizer Inc. v. Government of India, 434 U. S., at 313-315; Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S., at 486 n. 10; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 494 (1968); Mandeville Island Farms v. American Crystal Sugar Co., 334 U. S. 219, 236 (1948).
Hawaii v. Standard Oil Co., 405 U. S. 251 (1972), is not to the contrary. There we held that injury to a state’s total economy, for which the state sought redress in its parens patriae capacity, was not cognizable under § 4. It is true we noted that the words “business or property” refer to “commercial interests or enterprises,” and reasoned that Hawaii could not recover on its claim for damage done to its “general economy” because such injury did not harm Hawaii’s “commercial interests.” 405 U. S., at 264.
However, the language of an opinion is not always to be parsed as though we were dealing with language of a statute. Use of the phrase “commercial interests or enterprises,” read in context, in no sense suggests that only injuries to a business entity are within the ambit of § 4. Respondents ignore the Court’s careful use of the disjunctive and the naturally broad meaning of the term “interests” in Hawaii v. Standard Oil Co., supra. The phrase “commercial interests” was used there as a generic reference to the interests of the State of Hawaii as a party to a commercial transaction. This is apparent from Hawaii’s explicit reaffirmance of the rule of Chattanooga Foundry and statement that, where injury to a state “occurs in its capacity as a consumer in the marketplace” through a “payment of money wrongfully induced,” treble damages are recoverable by a state under the Clayton Act. Hawaii v. Standard Oil Co., supra, at 263 n. 14. A central premise of our holding in Hawaii was concern over duplicative recoveries. We noted that a “large and ultimately indeterminable part of the injury to the 'general economy’ ” for which the State sued was “no more than a reflection of injuries to the 'business or property’ of consumers” for which, on a proper showing, they could recover in their own right. 405 U. S., at 263-264.
Consumers in the United States purchase at retail more than $1.2 trillion in goods and services annually. 1978 Economic Report of the President 257 (Table B-l). It is in the sound commercial interests of the retail purchasers of goods and services to obtain the lowest price possible within the framework of our competitive private enterprise system. The essence of the antitrust laws is to ensure fair price competition in an open market. Here, where petitioner alleges a wrongful deprivation of her money because the price of the hearing aid she bought was artificially inflated by reason of respondents’ anticompetitive conduct, she has alleged an injury in her “property” under § 4.
Nothing in the legislative history of § 4 conflicts with our holding today. Many courts and commentators have observed that the respective legislative histories of § 4 of the Clayton Act and § 7 of the Sherman Act, its predecessor, shed no light on Congress’ original understanding of the terms “business or property.” Nowhere in the legislative record is specific reference made to the intended scope of those terms. Respondents engage in speculation in arguing that the substitution of the terms “business or property” for the broader language originally proposed by Senator Sherman was clearly intended to exclude pecuniary injuries suffered by those who purchase goods and services at retail for personal use. None of the subsequent floor debates reflect any such intent. On the contrary, they suggest that Congress designed the Sherman Act as a “consumer welfare prescription.” R. Bork, The Antitrust Paradox 66 (1978). Certainly the leading proponents of the legislation perceived the treble-damages remedy of what is now § 4 as a means of protecting consumers from overcharges resulting from price fixing. E. g., 21 Cong. Rec. 2457, 2460, 2558 (1890). Because Congress in 1890 rejected a proposal to allow a group of consumers to bring a collective action as a class, some legislators questioned whether individual consumers would be willing to bring actions for relatively small amounts. See, e. g., id., at 1767-1768, 2569, 2612, 3147-3148, 3150. At no time, however, was the right of a consumer to bring an action for damages questioned.
In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, after examining the legislative history of § 4, we described the Sherman Act as “conceived of primarily as a remedy for ‘[t]he people of the United States as individuals/ especially consumers,” and the treble-damages provision of the Clayton Act as “conceived primarily as ‘open[ing] the door of justice to every man . . . and giv[ing] the injured party ample damages for the wrong suffered.’ ” 429 U. S., at 486 n. 10. Thus, to the extent that the legislative history is relevant, it supports our holding that a consumer deprived of money by reason of allegedly anticompetitive conduct is injured in “property” within the meaning of § 4.
Respondents also argue that allowing class actions to be brought by retail consumers like the petitioner here will add a significant burden to the already crowded dockets of the federal courts. That may well be true but cannot be a controlling consideration here. We must take the statute as we find it. Congress created the treble-damages remedy of § 4 precisely for the purpose of encouraging private challenges to antitrust violations. These private suits provide a significant supplement to the limited resources available to the Department of Justice for enforcing the antitrust laws and deterring violations. Indeed, nearly 20 times as many private antitrust actions are currently pending in the federal courts as actions filed by the Department of Justice. Administrative Office of the United States Courts Ann. Rep. 101, Table 28 (1978). To be sure, these private suits impose a heavy litigation burden on the federal courts; it is the clear responsibility of Congress to provide the judicial resources necessary to execute its mandates.
Finally, respondents argue that the cost of defending consumer class actions will have a potentially ruinous effect on small businesses in particular and will ultimately be paid by consumers in any event. These are not unimportant considerations, but they are policy considerations more properly addressed to Congress than to this Court. However accurate respondents’ arguments may prove to be — and they are not without substance — they cannot govern our reading of the plain language in § 4.
District courts must be especially alert to identify frivolous claims brought to extort nuisance settlements; they have broad power and discretion vested in them by Ted. Rule Civ. Proc. 23 with respect to matters involving the certification and management of potentially cumbersome or frivolous class actions. See generally Durham & Dibble, Certification: A Practical Device for Early Screening of Spurious Antitrust Litigation, 1978 B. Y. U. L. Rev. 299. Recognition of the plain meaning of the statutory language “business or property” need not result in administrative chaos, class-action harassment, or “windfall” settlements if the district courts exercise sound discretion and use the tools available.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Me. Justice Brennan took- no part in the decision of this case.
Specifically, Reiter alleges that respondents violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1 and 2, and § 3 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 14. She claims respondents restricted the territories, customers, and brands of hearing aids offered by their retail dealers, used the customer lists of their retail dealers for their own purposes, prohibited unauthorized retailers from dealing in or repairing their hearing aids, and conspired among themselves and with their retail dealers to fix the retail prices of the hearing aids.
Differing views on this issue have been expressed by various courts. See, e. g., Reiter v. Sonotone Corp., 579 F. 2d 1077 (CA8 1978) (case below); Bravman v. Bassett Furniture Industries, 552 F. 2d 90, 98-99, and n. 23 (CA3), cert. denied, 434 U. S. 823 (1977); Cleary v. Chalk, 159 U. S. App. D. C. 415, 419 n. 17, 488 F. 2d 1315, 1319 n. 17 (1973), cert. denied, 416 U. S. 938 (1974); Theophil v. Sheller-Globe Corp., 446 F. Supp. 131 (EDNY 1978); Gutierrez v. E. & J. Gallo Winery Co., 425 F. Supp. 1221 (ND Cal. 1977), appeal docketed, No. 77-1725 (CA9).
The Court of Appeals expressly noted that Reiter’s claim for injunctive relief under § 16 of the Clayton Act was riot before it on interlocutory appeal. 579 F. 2d, at 1087 n. 19. The court therefore expressed no view as to Reiter’s standing to raise this claim. It also expressly refused to decide whether Reiter’s claim for treble damages under § 4 was barred by the direct-purchaser rule of Illinois Brick Co. v. Illinois, 431 U. S. 720 (1977). 579 F. 2d, at 1079 n. 3. Accordingly, these issues are not before us.
See, e. g., Hawaii v. Standard Oil Co., 405 U. S. 251, 261 (1972); Weinberg v. Federated Department Stores, Inc., 426 F. Supp. 880, 882-883 (ND Cal. 1977), appeal docketed, No. 77-1547 (CA9); M. Forkosch, Antitrust and the Consumer 2-3 (1956); Comment, Closing the Door on Consumer Antitrust Standing, 54 N. Y. U. L. Rev. 237, 242-243, 249-252 (1979). See also 1 P. Areeda & D. Turner, Antitrust Law ¶ 106, pp. 14r-16 (1978).
As originally introduced, the bill that ultimately became the Sherman Act authorized "any person or corporation injured or damnified by [an unlawful] arrangement, contract, agreement, trust, or combination” to sue for damages thereby sustained. S. 1, 51st Cong., 1st Sess., §2 (1889).
Of course, the treble-damages remedy of § 4 took on new practical significance for consumers with the advent of Fed. Rule Civ. Proc. 23.
Although in no sense a controlling consideration, we note that our holding is consistent with the assumption on which Congress enacted the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 90 Stat. 1394, 15 U. S. C. § 15c et seq. The 'text and legislative history of this statute make clear that in 1976 Congress believed that consumers have a cause of action under § 4, which the statute authorizes the states to assert in a parens patriae capacity. See, e. g., 15 U. S. C. §§ 15c (a)(1), 15c (a)(1) (B)(ii), 15c (b)(2); H. R. Rep. No. 94^499, pp. 6, 9 (1975). See also Illinois Brick Co. v. Illinois, 431 U. S., at 734 n. 14.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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songer_circuit
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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 circuit of the court that decided the case.
Ballard HAYWOOD, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 81-5708.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 9, 1982.
Decided Jan. 21, 1983.
Dan Rowland (argued), Prestonsburg, Ky., for plaintiff-appellant.
Joseph L. Famularo, Jr., U.S. Atty., Lexington, Ky., Holly A. Grimes (argued), [Lead Counsel], Asst. Regional Atty., Region IV, Atlanta, Ga., for defendant-appellee.
Before KEITH and JONES, Circuit Judges, and PECK, Senior Circuit Judge.
KEITH, Circuit Judge.
This black lung action was previously heard by another panel of this Court as Haywood v. Califano, No. 78-3665 (6th Cir. August 19, 1980). On February 27, 1981, the action was remanded to the district court for reconsideration in light of Miniard v. Califano, 618 F.2d 405 (6th Cir.1980). On remand, the district court reaffirmed the denial of benefits finding that “the Secretary had reasons to deny plaintiff the [statutory] presumption.” Plaintiff-appellant Ballard Haywood appeals. We reverse the judgment of the district court and remand to the Secretary for the award of benefits.
I.
Plaintiff-appellant Ballard Haywood is 66 years old, has a fourth grade education, and has never received vocational training. Haywood worked in coal mines for over 31 years. On June 15, 1972, shortness of breath and chest pains forced him to cease working. During the last several years of his employment the increasing severity of his respiratory problems prevented him from using a respirator. Haywood has not been able to work since he left the mines.
Haywood complains that he is chronically short of breath. Walking short distances or up a short flight of stairs causes weakness and breathing difficulty. At nights, he has difficulty sleeping and frequently must take Tedral to minimize the smothering and wheezing sensations he experiences. He also has a cough productive of dust-colored phlegm. His personal physician, Dr. Donald L. Martin, has advised Haywood not to drive a car. Haywood has been declared disabled and receives social security and workmen compensation benefits.
The medical evidence presented to the Secretary is as follows. Dr. Lowell D. Martin, a family practitioner and a certified “A” reader, examined Haywood shortly after he ceased working. His report, dated August 4, 1972, states that Haywood suffers from silicosis Stage 2/2q and could not extinguish a match held six inches from his mouth. The report recommends that Haywood not return to coal mining. In a supplemental letter, Dr. Martin stated that Haywood was totally and permanently disabled due to his pulmonary impairment. Dr. W. Linell Murphy, a certified “A” reader, and Dr. L.J. Bristol, a certified “B” reader, later reread the x-ray Dr. Martin relied upon as negative for pneumoconiosis.
On August 6,1972, Dr. William T. Anderson of Salyersville, Kentucky examined Haywood. He diagnosed pneumoconiosis category 2/2q and concluded that Haywood was a “pulmonary cripple” incapable of performing work requiring “any physical exertion”. Dr. Anderson explained that Haywood’s pulmonary impairment would not only prevent him from passing the pre-employment physical for work in coal mines, but would also prevent him from obtaining other employment. Dr. Murphy later determined that the x-ray Dr. Anderson had relied upon was unreadable.
On August 7, 1972, Dr. Richard P. O’Neill, Chairman of the Division of Pulmonary Medicine, College of Medicine at the University of Kentucky, examined Haywood. His report stated that the flow velocity of the respiratory system was decreased and aeration was diminished. “The breath sounds were coarsely bronchovesicular in quality and rhonchi and expiratory wheezes were heard.” Arterial blood gas studies showed “evidence of minimal arterial hypoxemia”. There was no evidence of peripheral edema, cyanosis, or digital clubbing. Dr. O’Neill diagnosed: “1. Chronic obstructive airway disease — mild to moderate. 2. Chronic bronchitis. 3. Coal worker’s pneumoconiosis, simple, stage 1/1 (p and q). 4. Questionable angina pectoris. 5. History of previous trauma to right shoulder with subsequent wasting of the right-shoulder girdle.” Dr. Mordecai Halpern, a certified “B” reader, later reread the x-ray relied upon by Dr. O’Neill as negative for pneumoconiosis.
On January 3, 1973, Dr. William H. Anderson, Chief of the Pulmonary Division, University of Louisville School of Medicine, examined Haywood. He determined that Haywood was vocationally disabled from working in coal mines and recommended that Haywood not expose himself to dust or silica. His diagnosis was as follows: “1) Arteriosclerotic heart disease with cardiac enlargement, paroxysmal nocturnal dypsnea, anginal pain relieved by nitroglycerine. 2) Previous injury to right shoulder. 3) Category I occupational pneumoconiosis.” Dr. William H. Anderson, however, also indicated that were it not for Haywood’s heart disease, he could expend the energy necessary to perform the work of an underground coal miner. Dr. Stanley Siegelman, a certified “B” reader of coal miner x-rays reread the x-ray relied upon by Dr. William H. Anderson as negative for pneumoconiosis.
On September 12, 1973, Dr. Ballard Wright conducted pulmonary function studies of Haywood. His report indicates that Haywood’s maximum voluntary ventilation is less than the value set forth in interim regulations for determining the existence of pneumoconiosis. Haywood’s expiratory volume was slightly above the values set forth in the regulations.
The Secretary determined that the above evidence was not sufficient to invoke either the presumption under the interim regulations 20 C.F.R. § 410.490 or the statutory presumption under 30 U.S.C. § 921(cX4). The Secretary found that the x-ray evidence was in “hopeless conflict”, the hearing testimony and depositions diminished the significance of the physical examination reports, and the claimant’s failure to present blood gas studies was a negative factor. The Secretary also relied upon Social Security Ruling 73-37 to discount the significance of the pulmonary function studies. Ultimately, the Secretary concluded that Haywood had not established that he suffered “from complicated pneumoconiosis as defined by the regulations.” We disagree.
II.
Pneumoconiosis is a slow progressive disease which ravages the health of coal miners. The incidence of this devastating disease is markedly higher in miners who have worked more than fifteen years. See Hill v. Califano, 592 F.2d 341 (6th Cir.1979). Literally thousands of miners have had their lungs riddled and their death hastened by pneumoconiosis. Countless others are alive, totally disabled, and experiencing breathing difficulties. Few states provide benefits to the unfortunate victims of pneumoconiosis. In 1969, Congress recognized the plight of coal miners. The Federal Coal Mine Health and Safety Act of 1969 (“Act”), as amended, 30 U.S.C. § 901 et seq., was passed to “compensate miners, and the widows and children of miners, whose lives and health have been sacrificed in the production of that critical energy source— coal.” S.Rep. No. 92-743, 92d Cong., 2d Sess. (1972), U.S.Code Cong. & Admin. News, p. 2305 quoted in Morris v. Mathews, 557 F.2d 563, 566, 570 (6th Cir.1977) and Miniard v. Califano, 618 F.2d 405, 410 (6th Cir.1980).
The Act is remedial and provides benefits to those claimants suffering from pneumoconiosis who filed before December 31, 1973. The Act’s two statutory presumptions provide alternative methods of demonstrating pneumoconiosis. Section 921(c)(3) provides the claimant with an irrebuttable presumption of disability due to pneumoconiosis if the x-ray or autopsy yields one or more large opacities greater than one centimeter in diameter. The Act, however, is also sensitive to the difficulty of diagnosing pneumoconiosis using an x-ray or any other single medical test.
Section 921(c)(4) provides a rebut-table presumption of total disability due to pneumoconiosis to miners who have worked fifteen years in a coal mine. However, to trigger this presumption a claimant must present “other evidence” to prove that he suffers from a totally disabling respiratory or pulmonary impairment. Other evidence includes blood gas studies, pulmonary function studies, x-ray, his age, education, medical history, and work experience. See Miniará, 618 F.2d at 409. Once the presumption has been triggered, the Secretary may rebut it only by showing that the claimant does not have pneumoconiosis or that the respiratory impairment did not arise out of his employment in a coal mine. 30 U.S.C. § 921(c)(4).
Claimants who cannot meet the requirements of Section 921(c)(4) may also recover under the interim regulations, 20 C.F.R. § 410.490, provided they have filed prior to July 1,1973. Congressional prompting during the debate of the Black Lung Act of 1972 caused the Secretary to promulgate substantially more liberal interim evidentiary and disability evaluation criteria for establishing pneumoconiosis. See 20 C.F.R. § 410.490(a). The regulations provide a rebuttable presumption of disability due to pneumoconiosis if: (1) pneumoconiosis category I or greater can be established by a chest x-ray and the impairment arose out of employment in a coal mine; (2) the miner was employed 15 years or more in a coal mine and he can meet certain ventilatory function or blood gas study values contained in the regulations. See 20 C.F.R. § 410.490(b)(i)(ii) and Appendix. These criteria establish the prima facie showing necessary to give rise to the presumption. Once the showing is made, the presumption is mandatory. The Secretary then must determine whether the evidence in the record is specific and comprehensive enough to rebut the presumption. Specifically, the Secretary must prove that the claimant is doing or is capable of doing his usual coal mine work or comparable work. See 20 C.F.R. § 410.490(c).
III.
This Court has on several occasions addressed the issue of quantity of evidence necessary to invoke the presumption contained in regulation 410.490(b)(l)(i). The Court has held that the regulation 410.-490(b)(l)(i) presumption is triggered on two occasions. First, a certified reader’s positive interpretation of a single x-ray is sufficient to trigger the rebuttable presumption. In Dickson v. Califano, 590 F.2d 616 (6th Cir.1978), the claimant presented a single x-ray to establish pneumoconiosis. Two physicians, one of whom was a certified reader, interpreted the x-ray as positive. Although readers employed by the Secretary later reread the x-ray as negative, the Court held that the certified reader’s positive reading of the single x-ray was sufficient to invoke the rebuttable presumption contained in 20 C.F.R. § 410.490(b)(l)(i). See also Burchett v. Mathews, 575 F.2d 1189 (6th Cir.1978) (per curiam). dence from several physicians. Although earlier x-rays had been interpreted as negative for pneumoconiosis, Drs. J. Roy Biggs and Robert B. Matheny found pneumoconiosis category 1/0 ps. Dr. H.W. Reckmann interpreted a different x-ray as evidence of pneumoconiosis category 2p. This Court held that the above evidence was sufficient to establish pneumoconiosis and trigger the presumption under regulation 410.-490(b)(l)(i). Id, at 410. See Burchett, 575 F.2d 1189.
Second, the presumption is triggered where two examining physicians diagnose pneumoconiosis and one of the diagnosis is pneumoconiosis category 2 or greater. In Miniard v. Califano, 618 F.2d 405 (6th Cir.1980), the claimant presented x-ray evi-
In the present case the Secretary contends that Haywood has not presented enough evidence to trigger either the presumption contained in 20 C.F.R. § 410.490 or 30 U.S.C. § 921(c)(4). The Secretary apparently relies on Lawson v. Secretary of Health and Human Services, 688 F.2d 436 (6th Cir.1982). In Lawson the claimant presented x-ray evidence from several physicians. X-rays taken in 1971 and 1973 were interpreted as negative for pneumoconiosis. A certified “A” reader and a second physician read two x-rays taken in 1974 as positive for pneumoconiosis. An Administrative Law Judge (ALJ) held that this was sufficient to trigger the presumption contained in regulation 410.490(b)(l)(i). The Appeals Council disagreed and had the x-rays reread by a certified “B” reader. The “B” reader found that the x-rays were either unreadable or negative for pneumoconiosis. The Appeals Council consequently reversed the decision of the ALJ. The Secretary adopted the Appeals Council’s position and the district court affirmed.
On appeal this Court held:
We hold that a single positive x-ray establishes pneumoconiosis as a matter of law only when it is uncontradicted by prior readings. To hold otherwise would mean that a claimant could have an x-ray that has been read as negative repeatedly reread until he achieves a positive reading and that he could then invoke the presumption of § 410.490. When x-ray evidence is in conflict, it is for the Secretary to weigh the evidence to determine whether the x-rays establish pneumoconiosis. (citation omitted.)
Id. at 438.
We agree that a single x-ray can be sufficient to invoke the presumption contained in regulation 410.490(b)(l)(i). See Dickson, 590 F.2d at 616. Moreover, the Secretary may resolve conflicting interpretations of a single x-ray where it is initially read as negative for pneumoconiosis. See Hill, 592 F.2d 341.
However, the Secretary may not, as Lawson seems to suggest, simply declare x-rays taken on different dates to be in “conflict” and deny benefits. Lawson asserts that the presumption was not triggered where negative x-rays taken in 1971 and 1973 “conflicted” with 1974 x-rays which were read as positive by a certified “A” reader and a second physician. Id., at 439. Lawson is problematic for several reasons.
First, an x-ray is merely a static portrait of an on-going dynamic process. An x-ray is a photograph of a claimant’s lung field on a specific date. Pneumoconiosis, however, is a slow, progressive disease. Consequently, a negative diagnosis in one year is not probative of the existence of pneumoconiosis on subsequent dates. See Singleton v. Califano, 591 F.2d 383, 385 (6th Cir.1979). On any given date pneumoconiosis may not be detectable or may not have destroyed enough of the claimants lungs to be diagnosed as category I. The disease, nevertheless, may progress and later destroy sufficient lung tissue to be characterized as category I. Therefore, the negative diagnosis in 1971 and the subsequent positive readings in 1974 are not “conflicting”. The Secretary never had an occasion to resolve “conflicting” x-ray evidence in Lawson. The different diagnoses are a poignant illustration of the progressive nature of pneumoconiosis.
Second, Lawson unfairly penalizes conscientious miners who.promptly seek medical attention for their breathing problems. Clearly, miners who seek an x-ray diagnosis and medical treatment when their breathing difficulties are not acute are at a potential disadvantage should they later decide to seek black lung benefits. This Court’s holdings should encourage and not create disincentives for miners to seek prompt medical attention for their breathing difficulties.
Finally, the only issue a court addresses when it determines the character of evidence needed to trigger the presumption is the requisite diagnostic certainty needed to comply with the intent of Congress. The sequence in which the positive radiological evidence occurs simply is not relevant to this inquiry. There is simply no “magic" in the sequence provided the positive diagnosis constitutes “sufficient” evidence that pneumoconiosis is present. In Miniard v. Califano, 618 F.2d 405 (6th Cir.1980) this Court held that although certain x-rays had been interpreted as negative for pneumoconiosis, subsequent, positive radiologic evidence was sufficiently probative of pneumoconiosis that the presumption was triggered. Id. at 410. See Burchett, 575 F.2d 1189.
For the above reasons, the Secretary’s reliance on Lawson is misplaced. In the present case, four physicians interpreted x-rays of Haywood as positive for pneumoconiosis. In August of 1972, Dr. Lowell D. Martin, a certified “A” reader, found silicosis stage 2/2q, Dr. William T. Anderson diagnosed pneumoconiosis stage 2/2q, Dr. Richard P. O’Neill diagnosed pneumoconiosis stage 1/1 (p and q), and Dr. William H. Anderson found pneumoconiosis category 1. Obviously, under either Dickson or Miniará Haywood is entitled to the rebut-table presumption contained in regulation 410.490(b)(l)(i). Dr. Martin’s diagnosis, although later challenged by a certified “B” reader employed by the Secretary, is sufficient under Dickson to trigger the presumption. Moreover, the diagnosis of Dr. William T. Anderson and either Dr. William H. Anderson or Dr. Richard O’Neill would have been enough to invoke the presumption. See Miniard, 618 F.2d at 410.
The Secretary may rebut the presumption by demonstrating that Haywood is performing or is capable of performing his usual coal mine work or comparable work. See 20 C.F.R. § 410.490(c). The Secretary cannot, however, rely upon negative x-rays or pulmonary function studies to rebut the presumption. See Miniard, 618 F.2d at 410; Cunningham v. Califano, 590 F.2d 635, 637 (6th Cir.1978); Burchett, 575 F.2d at 1191; Lawson, 688 F.2d at 438; Ansel v. Weinberger, 529 F.2d 304, 309-310 (6th Cir.1976). The x-ray evidence of Drs. Anderson, Martin, O’Neill, and Anderson was sufficient to raise the presumption. The negative readings by the “B” readers employed by the Secretary are not sufficient to rebut the presumption.
On appeal, the Secretary argues that it established that Haywood could physically work as a coal miner. The Secretary relies exclusively on Dr. William H. Anderson’s testimony that Haywood could expend the energy necessary to perform the work of an underground coal miner were it not for his heart condition. The Secretary’s reliance, however, is misplaced. The relevant inquiry for determining total disability is whether the claimant is vocationally disabled, not physically disabled. A claimant is totally disabled if his pneumoconiosis prevents him from obtaining work as a coal miner in the immediate area of his residence on July 1, 1973, Regulation § 410.-412(a) defines total disability as follows:
“A miner shall be considered totally disabled due to pneumoconiosis if: (1) His pneumoconiosis prevents him from engaging in gainful work in the immediate area of his residence requiring the skills and abilities comparable to those of any work in a mine or mine in which he previously engaged with some regularity and over a substantial period of time and (2) His impairment can be expected to ... last for a continuous period of not less than 12 months.”
The Secretary cannot rebut the presumption of total disability unless he demonstrates that the claimant is not vocationally disabled in the immediate area around his home. The Secretary has not made such a showing in the instant case. Drs. William T. Anderson and Dr. William H. Anderson testified that Haywood’s pneumoconiosis would prevent him from passing the requisite pre-employment physical for employment in a coal mine. Haywood, consequently, could not work in a coal mine in the area around David, Kentucky. This record contains additional evidence that Haywood’s pulmonary condition prevented him from performing comparable work. Accordingly, Haywood has demonstrated that he is independently and totally disabled.
IV.
The Secretary also maintains that the “other evidence” of Haywood’s respiratory condition, the medical evidence and the lay testimony concerning Haywood’s physical limitations, was not sufficient to trigger the rebuttable presumption of total disability due to pneumoconiosis found in 30 U.S.C. § 921(c)(4). Moreover, the Secretary asserts that this Court may not set aside its determination provided substantial evidence supports its conclusion, even if the evidence would have been viewed differently had this Court been the trier of fact. See Moore v. Califano, 633 F.2d 727, 729 (6th Cir.1980).
We agree that the Secretary’s determination may not be set aside if based on substantial evidence. E.g. Moore, 633 F.2d at 729. The Secretary’s conclusions, however, are not supported by substantial evidence where the “other evidence” was not considered in light of the manifest congressional intent under 30 U.S.C. § 921(c)(4). See Smith, 682 F.2d at 587; Caraway v. Califano, 623 F.2d 7, 11-12 (6th Cir.1980); Cunningham, 510 F.2d at 637; Conn v. Harris, 621 F.2d 228, 230 (6th Cir.1980); Ansel, 529 F.2d at 309-10. Proper deference to the manifest congressional intent is demonstrated where special consideration is given the diagnosis of the treating physician and of all physicians who examine the claimant. See Ansel, 529 F.2d at 309-10; Cunningham, 510 F.2d at 637; Conn, 621 F.2d at 230.
A claimant’s burden in demonstrating that he suffers from a totally disabling respiratory impairment is not onerous. The diagnosis of examining physicians and lay testimony concerning the claimant’s physical condition, age, education and vocational training are sufficient to trigger the presumption contained in 30 U.S.C. § 921(c)(4). See e.g., Smith, 682 F.2d at 587; Miniard, 618 F.2d at 409. In Singleton v. Califano, 591 F.2d 383 (6th Cir.1979), for example, plaintiff testified that after working as a coal miner for 26 years he had chest pains, experienced smothering spells, had a persistent cough, had difficulty sleeping at night, and took medication to relieve his breathing problems. Two physicians who examined plaintiff reported that he suffered from pneumoconiosis category 1/0. Plaintiff’s ventilatory function tests, however, were normal. This Court held that although the Secretary reread the x-rays as negative, plaintiff’s testimony and the medical evidence were sufficient to trigger the presumption under 30 U.S.C. § 921(c)(4).
In the instant ease Haywood presented more than ample evidence to trigger the presumption found in 30 U.S.C. § 921(c)(4). The testimony of Haywood and the reports of the examining physicians were persuasive evidence that Haywood suffered from a totally disabling respiratory impairment. Haywood testified that he worked as a coal miner for over 31 years, had a fourth grade education, and has never received vocational training. He experiences shortness of breath, has a productive cough, has difficulty walking short distances or up stairs, and frequently must take medication to relieve the smothering and wheezing sensations he experiences at night. Dr. Lowell D. Martin’s diagnosis is consistent with Haywood’s testimony. Dr. Martin found silicosis category 2/2q and noted that Haywood was unable to extinguish a match held six inches from his mouth. Based on his cumulative knowledge of Haywood’s condition Dr. Martin concluded that he was totally and permanently disabled and should not return to coal mining.
The diagnoses and observations of the other examining physicians support the conclusions reached by Dr. Martin. Dr. William T. Anderson diagnosed pneumoconiosis stage 2/2q and declared that Haywood was a “pulmonary cripple”. Dr. Richard P. O’Neill also examined Haywood and determined that he could no longer work as a miner. Dr. O’Neill reported that arterial blood gas studies showed evidence of mild arterial hypoxemia and that the breath sounds were coarsely bronchovesicular with rhonchi and wheezing occurring. His diagnosis was chronic obstructive airway disease — mild to moderate, chronic bronchitis, and coal worker’s pneumoconiosis state 1/1 (p and q). Dr. William H. Anderson found Haywood to be vocationally disabled from working in coal mines and suffering from pneumoconiosis category I. The pulmonary function study indicated Haywood met one of the two criteria for establishing pneumoconiosis under the interim regulations. Moreover, the blood gas study showed evidence of some arterial hypoxemia. In sum, the Secretary has failed to demonstrate that Haywood does not have pneumoconiosis.
Y.
On appeal the Secretary has attempted to argue that the evidence demonstrates that Haywood’s disability is due primarily to heart disease and not pneumoconiosis. The Administrative Law Judge who heard the case, however, did not make an explicit finding of primary cause. See Maddox v. Califano, 601 F.2d 920 (6th Cir.1979). In fact, the findings of the Administrative Law Judge are equivocal on whether Haywood is disabled due to his heart condition. Drs. William T. Anderson and Lowell D. Martin, by contrast, stated unequivocally that Haywood was totally and permanently disabled due to pneumoconiosis. We hold that Haywood has demonstrated that pneumoeoniosis caused Mm to be totally and permanently disabled. The Secretary may not embellish the conclusions of the Administrative Law Judge on appeal. It is not determinative that Haywood will obtain black lung and social security benefits. See Singleton, 591 F.2d at 385 n. 2.
Accordingly, the judgment of the district court is reversed. This action is remanded to the district court for remand to the Secretary for the payment of benefits.
. On August X0, 1972 Haywood filed his claim for black lung benefits. His claim was denied initially and upon consideration.
. Tedral is a prescription drug and a bronchial dilator which is used to treat asthmatics and others suffering from certain severe respiratory conditions.
. Silicosis is a disease encompassed within the definition of pneumoconiosis. See 20 C.F.R. § 410.401(b)(1). Pneumoconiosis, black lung, is a fibrous induration of the lungs due to irritation caused by the inhalation of dust. The most prominent symptoms are pain in the chest, cough, dypsnea, and fatigue after slight exertion. Stedman’s Medical Dictionary (3rd Edition 1974).
. See 20 C.F.R. § 410.490(b)(ii).
. The Secretary erred in stating that Haywood failed to present blood gas studies. Dr. O’Neill performed blood gas studies which revealed that Haywood suffered from mild hypoxemia.
. The Secretary’s reliance on Social Security Ruling 73-37 is erroneous. Social Security Ruling 73-37 has been criticized on several occasions. See, Singleton v. Califano, 591 F.2d 383, 385 (6th Cir.1979); Prokes v. Mathews, 559 F.2d 1057, 1060-62 (6th Cir.1979).
. On several occasions, this Court has indicated that the Federal Coal Mine Health and Safety Act (“Act”) should be liberally construed in a manner such that all doubts are resolved in favor of the disabled miner. See, e.g., Miniard v. Califano, 618 F.2d 405, 410 (6th Cir.1980); Morris v. Mathews, 557 F.2d 563 (6th Cir.1977). More importantly, this Court is aware that the legislative history of the Act and its subsequent amendments reflect Congress’s acute dissatisfaction with the manner the Secretary has administered the Act. For example, the Senate Report accompanying the 1972 Amendments to the Act expressed dismay that “the Act is not benefitting many of the nation’s coal miners who Congress intended to benefit.” S.Rep. No. 92-743, 92d Cong., 1st Sess. (1972) reprinted in 1972 U.S.Code Cong. & Admin. News, p. 2312, quoted in Singleton v. Califano, 591 F.2d 383, 385 n. 3 and in Morris, 577 F.2d at 568. Both the Secretary and the courts are obligated to interpret the Act in a manner which vindicates the purposes for which the Act was passed. See Miniard, 618 F.2d at 410.
. 30 U.S.C. § 921(c)(3) states:
(3) If a miner is suffering or suffered from a chronic dust disease of the lung which (A) when diagnosed by chest roentgenogram yields one or more large opacities (greater than one centimeter in diameter) and would be classified in category A, B, or C in the International Classification of Radiographs of the Pneumoconioses by the International Labor Organization, (B) when diagnosed by biopsy or autopsy, yields massive lesions in the lung, or (C) when diagnosis is made by other means, would be a condition which could reasonably be expected to yield results described in clause (A) or (B) if diagnosis had been made in the manner prescribed in clause (A) or (B), then there shall be an irrebuttable presumption that he is totally disabled due to pneumoconiosis or that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumoconiosis, as the case may be.
. Both Congress and the courts are aware that chest x-rays and ventilatory capacity tests are inaccurate techniques for diagnosing pneumoconiosis. See Singleton, 591 F.2d at 385, n. 3; Morris, 557 F.2d at 568. The Senate Report accompanying the 1972 Amendments to the Federal Coal Mine Health and Safety Act states in relevant part as follows:
“Congress recognized when the Act was being considered, however, that the chest X-ray, or roentgenogram, was an imperfect means of ascertaining the existence of pneumoconiosis in coal miners. Testimony to that effect was provided by the Surgeon General, who produced a Public Health Service study showing the existence of pneumoconiosis from autopsies performed on deceased coal miners who had, while living, been diagnosed by means of X-ray examination to be free of pneumoconiosis. For this reason, the Senate Committee report on the 1969 Act specifically referred to the need to require medical tests other than the X-ray to ‘establish the extent and severity of the disease.’ Many cases have come to the Committee’s attention in which a miner is suffering from a severely disabling respiratory or pulmonary impairment, and yet he has no X-ray evidence of pneumoconiosis.
Because of the continuing recognition of the fact that X-ray evidence is not always satisfactory, the Committee retained a provision of the House bill which prohibits the denial of a claim solely on the basis of the results of a chest roentgenogram. It was anticipated by Congress in 1969 that other tests to establish pneumoconiosis would be developed through research. This has not been done, and the Social Security Administration continues to rely exclusively on the results of X-ray evidence.
Testimony has further indicated that a negative X-ray is not proof positive of the absence of pneumoconiosis. Studies in addition to that of the Public Health Service confirm the existence of the disease by autopsy where a chest X-ray was negative, indicating an error of 25 percent in diagnosis.”
S.Rep. 92-743, 92d Cong., 1st Sess. (1972) reprinted in 1972 U.S.Code Cong. & Admin.News, pp. 2313-4.
. 30 U.S.C. § 921(c)(4) states:
(4) If a miner was employed for fifteen years or more in one or more underground coal mines, and if there is a chest roentgenogram submitted in connection with such miner’s, his widow’s, his child’s, his parent’s, his brother’s, his sister’s, or his dependent’s claim under this subchapter and it is interpreted as negative with respect to the requirements of paragraph (3) of this subsection, and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis, that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumoconiosis. In the case of a living miner, a wife’s affidavit may not be used by itself to establish the presumption. The Secretary shall not apply all or a portion of the requirement of this paragraph that the miner work in an underground mine where he determines that conditions of a miner’s employment in a coal mine other than an underground mine were substantially similar to conditions in an underground mine. The Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine. The provisions of this paragraph shall not apply with respect to claims filed on or after the effective date of the Black Lung Benefits Amendments of 1981.
. Compare 20 C.F.R. § 410.490(b)(l)(ii) with 20 C.F.R. § 410.426(b).
. Elkins v. Secretary of Health and Human Services, 658 F.2d 437 (6th Cir.1981) does not conflict with the holding in Miniará. In Elkins a physician read a single x-ray as indicative of pneumoconiosis category 1/ls and 2/3q. This single reading, however, was not sufficient to invoke the presumption under 20 C.F.R. § 410.-490(b)(l)(i) because the physician was not a certified reader. 658 F.2d at 439. The Court did not consider the positive x-ray taken in 1975, two years after the deadline.
We note that under the Black Lung Benefits Reform Act of 1977, the Secretary must accept an initial x-ray reading which is positive for pneumoconiosis, in the absence of fraud. See Pub.L. No. 95-239, § 5(a); 92 Stat. 97 (amending 30 U.S.C. § 921 (1976)).
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_genresp2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
James T. COX, Appellee, v. UNITED STATES of America, Appellant.
No. 73-2322.
United States Court of Appeals, Fourth Circuit.
Argued March 6, 1974.
Decided May 22, 1974.
William S. Estabrook, III, Atty., Tax Div., U. S. Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and Grant W. Wiprud, Attys., Tax Div., U. S. Dept, of Justice, James F. Companion, U. S. Atty. on brief) for appellant.
Boyd L. Warner, Clarksburg, W. Va. (Stathers & Cantrall, Clarksburg, W. Va., on brief) for appellee.
Before WINTER, BUTZNER and FIELD, Circuit Judges.
FIELD, Circuit Judge:
This appeal presents the question whether the retention of an overriding royalty interest incident to the assignment of certain oil and gas leases constitutes an “economic interest” which subjects the initial lump sum payments to ordinary income treatment rather than capital gains consideration.
In 1959 A. T. Carr leased 1,194 acres of oil and gas lands in Doddridge County, West Virginia, for one dollar per acre. In 1960 the appellee, James T. Cox, entered into an informal agreement with Carr under which he would contribute $2,000 for the development of a well in exchange for a half interest in all of the leases. Spurred by successful drilling operations on adjacent land, the partnership assigned ten leases to various companies for $180,125 in 1963 and $115,000 in 1964. Cox and Carr shared the proceeds equally, and the partnership retained a %sth overriding royalty interest of the %th working interest in each of the ten leasehold assignments. Additionally, the partnership retained a ^th working interest, subject to the reserved overriding royalty interest, in one lease.
Cox treated his share of the profits as a long-term capital gain on his 1963 and 1964 tax returns. The Commissioner of Internal Revenue viewed the profits as ordinary income subject to a depletion allowance and assessed deficiencies of $12,156.17 plus $1,776.72 interest for 1963 and $5,556.63 plus $478.70 interest for 1964. Cox paid the deficiencies and sought a refund which was denied. He then instituted this action pursuant to 28 U.S.C. § 1346(a)(1) for recovery of the alleged overpayment. The district court granted judgment in favor of Cox and the government appeals.
The test for determining what is an economic interest first appeared in Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489 (1933), and is now found in Treas.Reg. § 1.611-1(b)(1)(1960):
“An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place * * * and secures, by any form of legal relationship, income derived from the extrac-
tion of the mineral * * * to which he must look for a return of his capital.”
The district court held the lump sum payments were subject to capital gains treatment because they were not dependent upon the extraction or production of oil and therefore did not fall within the scope of the treasury regulation. The record, however, does not support this bifurcated view of the transaction. Each of the ten leases assigned by the partnership is inextricably bound by a reserve clause which grants the partnership a Y&th overriding royalty interest, and in one of the ten leases, a %th working interest, subject to the reserved overriding royalty interest of the %th working interest. Accordingly, income from the royalty interests is tied directly to oil and gas production.
Assuming, however, that the two lump sum payments here in question were independent of the retained royalty interests, substantial authority denies them the benefit of capital gain treatment. In Burnet v. Harmel, 287 U.S. 103, 53 S.Ct. 74, 77 L.Ed. 199 (1932), the issue was whether a lump sum bonus paid the lessor under an oil and gas lease, which reserved the usual royalty, was to be treated as capital gain or ordinary income. The Court put all portions of the transaction into one category, viewing the bonus as anticipatory royalty which should be treated as ordinary income. In Herring v. Commissioner, 293 U.S. 322, 55 S.Ct. 179, 79 L.Ed. 389 (1934), the Court held that the depletion allowance was applicable to advance royalties and bonuses received by a lessor upon the execution of an oil and gas lease even though there were no wells on the property and no production during the taxable year. Finally, in Commissioner v. P. G. Lake, Inc., 356 U.S. 260, 78 S.Ct. 691, 2 L.Ed.2d 743 (1958), the Court decided that the consideration received for the assignment of an “oil payment right” carved out of a larger mineral interest (whether a royalty interest or a working interest) was taxable as ordinary income, subject to a depletion deduction, and not as a capital gain. The Court reasoned that “[t]he lump sum consideration seems essentially a substitute for what would otherwise be received at a future time as ordinary income.” 356 U.S., supra, at 265.
In reaching the conclusion that Cox did not retain an economic interest the court below made no reference to the foregoing decisions, but relied primarily on Helvering v. Elbe Oil Land Co., 303 U.S. 372, 58 S.Ct. 621, 82 L.Ed. 904 (1938), and Commissioner v. Remer, 260 F.2d 337 (8 Cir. 1958). We find, however, that Elbe has been considerably diluted by subsequent decisions and is of little precedential persuasiveness. In Elbe, the taxpayer sold all of its interest in certain oil and gas properties in consideration of a large initial lump sum payment, four substantial deferred payments which were payable without regard to production, and a residual interest in the net profits from production and operation of the properties. The Court denied the taxpayer a depletion deduction computed on the cash payments, holding that the transaction was an absolute sale of the taxpayer’s interest in the property. With reference to the taxpayer’s participation in the net profits, the Court stated that it was “unable to conclude that the provision for this additional payment qualified in any way the effect of the transaction as an absolute sale or was other than a personal covenant of the [purchaser].” 303 U.S., supra, at 375.
Eight years after Elbe, in Burton-Sutton Oil Co., Inc. v. Commissioner of Internal Revenue, 328 U.S. 25, 66 S.Ct. 861, 90 L.Ed. 1062 (1946), the Court concluded that where the assignor of certain oil rights retained an interest in the net operating profits, the transaction was not a sale but rather an assignment “with a reservation in the assignor of an economic interest in the oil.” Id., at 37. The Court attempted to distinguish rather than overrule its decision in Elbe, concluding that “the holding of Elbe should not be extended to the facts of this agreement.” Id., at 36. In Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347 (1956), the Court again declined to follow Elbe, holding that the retention of a share of net profits was an economic interest in the oil in place which entitled the taxpayer to the depletion allowance. The moribund state of Elbe was recognized by the Tenth Circuit in Commissioner of Internal Revenue v. Pickard, 401 F.2d 615 (1968), with the observation that “[t]he Supreme Court in Burton-Sutton appears to have limited Elbe to its particular facts, as did Comm’r. v. Southwest Exploration Co. * * Id., at 616.
Similarly, the Eighth Circuit’s decision in Commissioner v. Remer, supra, which involved the sale of “stockpiled iron ore mining leases” and was decided largely on the basis of Elbe, has been limited to its particular facts. See Wood v. United States, 377 F.2d 300 (5 Cir.), cert. denied 389 U.S. 977, 88 S.Ct. 465, 19 L.Ed.2d 472 (1967); Rabiner v. Bacon, 373 F.2d 537 (8 Cir. 1967).
To accept the taxpayer’s contention that the reserve clause should be divorced from the alleged fractional sale of a capital asset would place us in the situation which confronted the Tenth Circuit in United States v. White, 311 F.2d 399 (1962), overruled 401 F.2d 610 (10 Cir. 1968). In White the taxpayers received a payment of $175,000 plus a ten per cent royalty of the gross value of all uranium mined from the property. In its initial opinion the court held that the lump sum payment was part of the consideration paid for the sale of the minerals and was properly treated as a capital gain since the taxpayers had retained no economic interest in the minerals in place. Six years later the same taxpayers sought to have the royalty payments taxed at capital gain rates rather than ordinary income. Sitting in banc, the court found that the absence of a total price plus the continued participation by the taxpayers in the mineral production made the transaction a lease and not a sale thereby subjecting the royalty payments to ordinary income treatment. In overruling its prior decision the court stated:
“As will be hereinafter developed the transaction must be examined as a whole and, under the decisions of the Supreme Court, put into one category. It is tempting to divide the transaction into several steps with different tax consequences, but this cannot be done. The tax category into which the entire transaction must be placed is that of a lease.” 401 F.2d, supra, at 611.
We conclude that in the transactions before us Cox retained an economic interest in the oil and gas which requires that the lump sum payments be taxed as ordinary income subject to the depletion allowance and not as capital gains. Accordingly, the judgment of the district court is reversed and the case remanded with instructions to enter judgment in favor of the government.
Reversed and remanded.
. A royalty interest is a right to receive a specified percentage of all oil and gas produced during the lease. 3B Mertens, Law of Federal Income Taxation, § 22.37 at 329 (1973). If the owner of an oil and gas lease transfers it to another operator, retaining a share of the production, usually Yl^th, free of expense other than severance tax, this retained interest is called an overriding royalty. It differs from a landowner’s royalty in that it stems from the lease and terminates with the lease. Acquisition of Oil and Gas Properties, 21 Oil & Gas Tax Q. 1, 10 (L. Fiske ed. 1972).
. An oil and gas lease ordinarily conveys the entire mineral interest less' any royalty interest retained by the lessor. The owner of the lease is said to own the “working interest” because he has the right to develop and produce the minerals. Commissioner v. P. G. Lake, Inc., 356 U.S. 260, 261 n. 1, 78 S.Ct. 691, 692, 2 L.Ed.2d 743 (1958).
. A net profits interest is a share of gross production measured by net profits from operation of the property. Like the overriding royalty it is created from the working interest, and the net profits interest differs from other production-measured payments in that it represents a fractional share of the profit of the operating company, rather than a fractional share of the minerals themselves as produced. Comment, Sale or Lease: Capital Gain or Ordinary Income Subject to Depletion in Mineral Transactions, 32 La.L.Rev. 417, 424 n. 30 (1972).
. In a separate opinion, Mr. Justice Frankfurter criticized the “gossamer” distinctions drawn by the majority between Elbe and Burton-Sutton, “which hardly can be held in the mind longer than it takes to state them * * *.” 328 U.S. at 38.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_realresp
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the formally listed respondents in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed respondent, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties."
UNITED STATES of America, Appellant, v. 2,648.31 ACRES OF LAND, MORE OR LESS, IN THE COUNTIES OF CHARLOTTE AND HALIFAX, VIRGINIA, J. P. Stevens and Company, Inc., et al., and unknown owners, Appellees.
No. 6833.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 13, 1954.
Decided Jan. 5, 1955.
Fred W. Smith, Atty., Department of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., John Strickler, U. S. Atty., Roanoke, Va., and Roger P. Marquis, Atty., Department of Justice, Washington, D. C., on brief), for appellant.
James S. Easley, South Boston, Va. (Easley, Edmunds & Vaughan, South Boston, Va., on brief), for appellees.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PARKER, Chief Judge.
This is an appeal by the United States from a judgment awarding compensation in a proceeding for the condemnation of flowage easements over three certain tracts of land in connection with a flood control project, the John H. Kerr Dam and Reservoir on the Roanoke River in Virginia and North Carolina. The trial judge held that the owners were entitled to recover the fee simple value of the several tracts, amounting to $58,-000, $9,000 and $10,000 respectively, and excluded testimony offered by the government tending to show that the decrease in the value of the several tracts due to the acquisition of the flowage easements by the government was only $15,-000, $2,000 and $3,000 respectively. The question in the case is the proper measure of compensation for the taking of a flowage easement over land.
The declaration of taking shows clearly that only flowage rights over the lands were being taken, that these flowage rights were taken with respect to a particular dam which was being built for flood control purposes, with a showing of the contour of the lands which would be in any way affected by the construction and with a reservation to the owners of the right to make any use of the lands which would not interfere with the flowage rights which were being condemned. The pertinent portion of the declaration of taking is as follows:
“The full, complete, and perpetual right, power and privilege to overflow, permanently or intermittently, as may be necessary as a result of the construction, maintenance and operation of the John H. Kerr Dam and Reservoir, (describing the lands) together with the right, power and privilege to go upon the lands involved from time to time as the occasion may require to accomplish any activities in connection with the maintenance and operation of the John H. Kerr Dam and Reservoir and to remove from said lands natural or artificial structures or obstructions which, in the opinion of the representative of the United States in charge, may be detrimental to the maintenance and operation of said project, reserving, however, to the owner(s) and their assigns, all such rights and privileges as may be used and enjoyed without interfering with or abridging the rights and easements acquired by the United'States, subject, however, to existing easements for public roads and ■highways, for public utilities, for railroads and for pipelines.
“4. The plan showing the lands taken is annexed hereto as Schedule ‘B’ and made a part hereof. .
The government offered proof, which was excluded, as to the extent to which the tracts in question would actually be flooded, either permanently or intermittently, by operation of the project. The offer of proof is accurátely summarized' in appellant’s:brief as-follows: •
'-“Included in the offer was a report by- the District Engineer, Corps of Engineers, U. S. Army, Norfolk, Vir-giiiia,-describing the dam and reservoir as 'actually constructed and the" operation of the same, showing that the elevation of the spillway 288 feet, and that with the spillway gates closed the top elevation of the dam would be at elevation 320 feet. The report further stated that ‘the space from elevation 300 1 [the power pool level] to 320 will be reserved for flood water storage’ and that ‘The land above elevation 310 will be inundated so rarely that it could be used for farming.’ Thus water is retained in the reservoir above elevation 300 only during flood conditions, and it was made clear to the court below and- to opposing counsel at the hearing that as soon as conditions permitted the pool would be pulled down to power pool or 300- feet elevation. Included in the offer of proof is a . map- in color showing the 320-foot contour on the three tracts in question, the areas below that, level- being colored yellow. That, map shows that no part of Tract KK-3621E is below that level, and that only small portions of Tracts NN-3918E and NN-3939E are below that-level. Thus the Government offered to prove that no, part of Tract KK-3621E could be overflowed: permanently -and that only very small portions of the other two-tracts ‘will be overflowed permanently, except 'as .have otherwise been overflowed naturally.’ And in paragraph 5 the Government offered to prove that ‘it will be impossible physically to overflow these three tracts permanently’ and ‘it will also b.e impossible physically to overflow even a portion of them intermittently to any materially greater extent than that to which they have always been subject by natural flooding.’ On the question of natural flooding of the three tracts here involved, the Government offered to prove by records of the Weather Bureau the frequency and elevations of past natural floods opposite the tracts during the period 1901 to 1952, and on that subject a detailed ‘Record of Flood Heights on Roanoke (Staunton) River Near Randolph and Clover, Va.’ was offered as an exhibit. Finally the Government offered the evidence of witnesses to prove that the value of the easements, on the basis of actual flooding due to operation of the dam, was $3,000 as to Tract KK-3621E, $2,000 as to Tract NN-3918E, and $15,000 as to Tract NN-3939E.”
We think that the learned trial judge was in error in excluding the proof thus offered and in holding that the landowners were entitled to recover the fee simple value of the lands over which' only flowage rights were being taken. A flood control project, such as was being constructed by the government, will necessarily cause the permanent flooding of some lands but as to others only intermittent flooding as the result of delayed run-off when flood conditions prevail in the river. Lands not permanently but only intermittently flooded can be used by the owner almost as satisfactorily as if the project were not in existence and the extent of the intermittent flooding and its effect upon the value of the land can be as readily determined as: any of the other matters ordinarily involved in determining compensation. In such a situation there is no reason why the government should condemn and pay for anything more than the flowage rights for these intermittent floodings and no reason why the compensation to be awarded therefor should be anything other than the difference in the value of the land with and without the flowage easement.
In United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 385, 61 L.Ed. 746, there was involved the question of the government’s liability for periodic flooding incident to the operation of a lock and dam which formed part of a government navigation project. After pointing out that the periodic flooding was a “permanent condition” in that the land would be subject to such flooding as the operation of the dam necessitated, the court proceeded to make clear that the recovery should be limited to the value of the easement so taken. The court said:
“If any substantial enjoyment of the land still remains to the owner, it may be treated as a partial instead of a total divesting of his property in the land. The taking by condemnation of an interest less than the fee is familiar in the law of eminent domain. Where formal proceedings are initiated by the party condemning, it is usual and proper to specify the precise interest taken, where less than the fee. But where, as in this case, the property owner resorts to the courts, as he may, to recover compensation for what actually has been taken, upon the principle that the government, by the very act of taking, impliedly has promised to make compensation because the dictates of justice and the terms of the 5th Amendment so require (United States v. Great Falls Mfg. Co., 112 U.S. 645, 656, 5 S.Ct. 306, 28 L.Ed. 846, 850; United States v. Lynah, 188 U.S. 445, 465, 23 S.Ct. 349, 47 L.Ed. 539, 546), and it appears that less than the whole has been taken and is to be paid for, such a right or interest will be deemed to pass as is necessary fairly to effectuate the purpose of the taking; and where, as in this case, with respect to the 6%o acres, land is not constantly but only at intervals overflowed, the fee may be permitted to remain in the owner, subject to an easement in the United States to overflow it with water as often as necessarily may result from the operation of the lock and dam for purposes of navigation.”
In Karlson v. United States, 8 Cir., 82 F.2d 330, 335, the court held that it was error to reject testimony as to the operation of a reservoir (being operated under the provisions of a treaty) as bearing upon the extent of the interest taken. The question was exhaustively considered in an able opinion by Judge John B. Sanborn who, in the course thereof, laid down the rule which we think should be applied here. He said:
“It seems fairly obvious that, for the benefit of the power interests on the Winnipeg river, the discharge of water from the lake is to be uniform and continuous during all the time that the levels of the lake are within the ordinary treaty range, while, on occasions of low precipitation or extreme precipitation, when the lake falls to the extreme low level or goes above the ordinary range of levels, the outflow is to be controlled in such a way as to bring the lake levels back within their ordinary treaty range. In any event, if the Treaty is adhered to, as it must be presumed that it will be, the extreme or emergency high level of the lake cannot be maintained continuously, since that could only be done in disregard of the provision of the treaty as to ordinary levels and as to uniform and continuous discharge of water.
“There is no way of determining from the Act of Congress authorizing the acquisition of the easement, or from the Treaty itself, for how long or during what periods the extreme high or extreme low or ordinary range of levels' will prevail. To determine what the probable effect of the imposition of this easement will be upon these lands, it is necessary to consider other factors, such as the amount of annual precipitation in the territory which drains into the lake, the yearly and seasonal variations in precipitation which have occurred in the past and will therefore in all probability occur in the future, and their effect upon lake levels during the growing season.
“In these cases, the petitioner is asking for and will receive no greater right to flow these lands than is authorized by the Treaty. If, in the future, a greater servitude should be placed upon these lands than that which is now authorized, we have no doubt that the respondents-, will be entitled to additional compensation if the value of their lands is.adversely affected thereby. Whether the imposition of this easement deprives the respondents of all of the value which inheres in their lands below elevation 1062.5 and leaves them with nothing but a naked legal title, was a question of fact for the jury and not a question of law for the court.”
In the case before us, the government is asking for-'and will receive no greater right to flow the lands than is necessitated in the proper operation of the flood control dam, which with the-- contour -of the lands that will be affected by it is described in the declaration of taking, just as in -the Karlson case the petitioner was asking for and would receive no greater right to flood the lands than authorized by the treaty. If in the future, to paraphrase the language of Judge Sanborn, a greater servitude should be' placed upon these lands' by changes in the dam, we have no doubt that the owners will be entitled to additional compensation if the value of the lands is adversely affected thereby.
As the evidence shows that the- effect of the proper operation of the dam here as a flood control dam is to flood only intermittently (and that in time of flood) the greater portion of the lands involved, the following quotation from the decision in Alabama Power Co. v. Carden, 189 Ala. 384, 66 So. 596, quoted with approval by Judge Sanborn, is directly in point, viz.:
“ ‘If the effect of the dam at lock 12 was to submerge the stated area upon occasions of flood only, the appellee would have left in him the right to use the land, consistent with the condemnor’s right thereto, for any purpose to which he could devote it. Where the owner, after condemnation, “retains substantial rights in the property, he cannot insist on their value being included in the measure of his compensation.” 10 Am & Eng.Ency. of Law, p. 1150; 2 Lewis on Eminent Domain, § 746. The owner is only entitled to be compensated for that taken and other remaining property injuriously affected in consequence. Accordingly, if the jury should find that the area was to be actually submerged upon occasions of flood only, and that these occasions would leave to the owner opportunity for its use to his own advantage, the measure of the compensation as for the property (area) thus taken is the value of that area before and after condemnation. Under such circumstances to require.the condem-nor to compensate for the whole value of the area thus appropriated would necessarily afford the owner a remuneration'. for that of which lie has not been deprived.’"
In point also is the decision of the Court of Appeals of the 8th Circuit in Union Electric Light & Power Co. v. Snyder Estate Co., 8 Cir., 65 F.2d 297, where in an opinion by Judge Gardner, that court reversed the court below for allowing recovery - as for a permanent flooding up to an elevation of 670 feet, . where the evidence showed that that level would be reached only in time of flood. The owners attempt to distinguish that case on the ground that the condemnor there disclaimed any intention of flooding the land up to the 670 foot elevation except in time of flood; but the disclaimer there amounts to no more than the limitation here in the declaration of taking, wherein it appears that it is a flood control dam that is being constructed and that the maximum flooding, even for intermittent periods, is within the contours shown.
In United States v. Willis, 4 Cir., 141 F.2d 314, 315, this court dealt with a condemnation case in which intermitting flooding was involved. In that case we approved a finding of the lower court that there was only a partial taking as to the land intermittently flooded. The court, speaking through Judge Soper, said:
“The same evidence supported the valuation placed by the District Judge upon the higher strip of land which bordered the river at its new level and lay above the narrow strip which was permanently submerged by the operation of the new dam. It was admitted in the pleadings that in the normal functioning of the dam the waters in the pool above the dam vary in height from 590 to 595 feet above sea level and that within this 5 foot area lay 1.009 acres of the plaintiff’s land. The District Judge accordingly found that this strip was subjected to occasional flooding. He found as in the case of the lower strip that the fair market value of the land was $1,000 per acre and also that the damages suffered by the plaintiff by the occasional flooding amounted to a taking of one-half of the fair market value of the property, or $504.50. It is established that a permanent intermittent overflow of land is a partial taking for which the taker is bound to make just compensation to the owner.”
It is perfectly clear that all the government sought to acquire or did acquire by the taking here was an easement to flood the land for the purpose of the flood control dam, and we think it a clear case for the application of the rule that “where only an easement is taken, the fact that the fee remains in the landowner must be taken into consideration, the entire fee or rental value not being recoverable.” 20 C.J. p. 758, 29 C.J.S.Eminent Domain, § 152, page 1011. “When land is flowed for the development of water power, the owner’s damage for its taking is measured by the difference between the value of his land after the condemnor has flowed it and what it would have been worth on the date of its taking if the defendant’s dam had not been built; that is the difference between the value of the land free from, and subject to, the rights taken”. 18 Am.Jur. 890. See also Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 78 L.Ed. 142; United States v. Dickinson, 4 Cir., 152 F.2d 865, 869, affirmed 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789; United States v. 10.08 Acres of Land, D.C., 46 F.Supp. 138, 139; Cheves v. Whitehead, D.C., 1 F.Supp. 321; Emmons v. Utilities Power Co., 83 N.H. 181, 141 A. 65, 58 A.L.R. 788.
It is argued that under the declaration of taking the right to flow “permanently” as well as “intermittently” the lands described in the declaration is acquired, and reliance is placed upon the elementary rule that compensation must be made once for all and must be estimated according to the full measure of the right acquired. See Western Union Telegraph Co. v. Polhemus, 3 Cir., 178 F. 904, 29 L.R.A.,N.S. 465. The answer is that the declaration of taking here limited the effect of the language relied on to such permanent and intermittent flooding as would result from the maintenance and operation of the flood control dam. It is elementary that the language of any instrument must be construed with reference to the subject matter with which it .deals: Here there, was a taking of flowage rights-necessary to the- functioning of a flood control dam described with the contour of the lands affected by it in the declaration of taking. The reasonable meaning of the language relied on is not that the government was taking the right to flood permanently all of the lands described but was taking the right to-flood permanently such portions of them as- might be necessary in the proper operation of the dam and to.flood the remainder only intermittently.. As a practical matter there' v/ould be permanent flooding only of the lands' that would be covered when .the water in the reservoir was at operational level. There, would be-intermittent flooding of other areas when flood conditions prevailed. Everyone understood this, and the’ declaration of taking reserved to the owners the right to continue to use the lands. We were told at the bar that they are continuing to use them and we see no- basis in law, in reason or in common honesty why they should collect from the government the full value of land in which they have reserved rights and which they are continuing to use merely because the government has acquired an easement with respect to flow-age rights.
Under the statute, 40 U.S.C.A. § 258a, the government acquired the right to flood the lands under the declaration of taking to the extent, described therein.. The meaning of the language of the declaration is under attack but whatever- ambiguity exists will be" made perfectly clear by the evidence offered by the government which may' be- considered for this purpose on the remand of the case, and thereby the extent of the right to flood, which is being acquired the government, will be definitely fixed. This should be made clear also in the judgment so that there may be no question as to the landowner’s right to recover if, in the future, there is greater flooding as the result of changes in the structure or the operation of the dam.
For the reasons stated, the judgment appealed from will be reversed and the case will be remanded for further proceedings not inconsistent herewith.
Reversed.
Question: Are the formally listed respondents in the case the "real parties", that is, are they the parties whose real interests are most directly at stake?
A. both 1st and 2nd listed respondents are real parties (or only one respondent, and that respondent is a real party)
B. the 1st respondent is not a real party
C. the 2nd respondent is not a real party
D. neither the 1st nor the 2nd respondents are real parties
E. not ascertained
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
The UNITED STATES of America, Appellee, v. Elijah COLEMAN, Appellant.
No. 11781.
United States Court of Appeals Third Circuit.
Submitted Feb. 7, 1956.
Decided Feb. 28, 1956.
Elijah Coleman, pro se.
Raymond Del Tufo, Jr., U. S. Atty., Everett T. Denning, Asst. U. S. Atty., Newark, N. J., for appellee.
Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This is an appeal from the denial in the same case of a second motion under 28 U.S.C. § 2255.
On May 23, 1952, appellant was convicted on all counts of a six count indictment charging him and others with the sale and concealment of heroin in violation of 21 U.S.C.A. § 174. He was sentenced to imprisonment for a period of ten years, to run concurrently with a sentence of five to seven years imposed February 7, 1951 by the Essex County Court of New Jersey. The state court conviction was for violation of state narcotic laws by reason of a heroin sale on October 14, 1950. That same sale was also the basis for the allegations of counts V and VI in the federal indictment.
The first motion, above referred to, asked for vacation of the federal sentence because of alleged double jeopardy and because of the claim that in three instances a single offense was divided into two separate offenses for the purpose of imposing more severe and extensive punishment. This was denied by the district court by its opinion and order filed October 8, 1954. The defendant appealed but subsequently abandoned his appeal.
The present motion, filed August 29, 1955, stated that appellant was illegally arrested, fraudulently indicted and convicted in the district court as a result of a conspiracy between federal narcotic agents, the assistant district attorney in charge of the case and government witnesses whereby illegal and fraudulent evidence was presented to the grand jury and perjured testimony given at the trial. That motion was denied by the district court opinion and order filed October 27. 1955.
In his motion appellant alleged that two federal narcotic agents solicited one Hemingway, a government witness, to come to their office for the sole purpose of entering into a conspiracy with another agent to procure illegal evidence and testimony to secure a conviction of appellant and did secure such conviction; that it would be established on a proper hearing that the assistant district attorney and the agents established a method regarding deals, intimidation and promises to witnesses to manufacture evidence (in support of this last a portion of the testimony of a trial witness, Myrtle Moore, is quoted); that the offense charged agair«ct appellant was shown at the trial to have been committed by Miss Moore; that the district attorney took physical possession of illegal evidence, submitted it to the grand jury and thereby caused the indictment against appellant; that a conspiracy was entered into with government witness Hemingway to purchase narcotics from persons unknown to appellant in order to obtain an indictment of appellant and that Hemingway and two other government witnesses, Blair and Griggs, gave perjured testimony at the trial as the result of the conspiracy with the agents; that the assistant district attorney and one of the agents suppressed evidence which would have been sufficient to acquit appellant. There was no factual support offered for these allegations other than certain quoted excerpts from the trial transcript.
The trial court in its opinion denying this motion without a hearing said: “At the time of the trial, as the record shows, the question of the existence of a conspiracy of the nature alleged by the petitioner was made the subject of testimony, heard at the insistence of the court, and in the presence of the jury. This was part of the evidence considered by the jury which by its verdict indicated disbelief in the existence of such a conspiracy. With this inferred conclusion, the court, which had the opportunity of observing the witnesses as they testified and weighing their credibility, was in complete accord. It may be well to note at this time that the defendant during his trial in this court testified that he had been convicted in the state court for violation of the State Narcotic Act [N.J.S. A. 24:18-1 et seq.], involving the sale which was the basis of the conviction in this court.”
The trial court went on to say that “At the time of sentence, when reference was made to the continued protests of innocence of the defendant, the court pointed out, that in view of the testimony, in order to believe these protestations, it would have to believe that the defendant was the victim of a corrupt conspiracy between the Assistant United States Attorney and the government witnesses with attendant perjury on the part of the witnesses, which definitely this Court found no reason to believe.” It is worthy of note, as the trial judge commented, that despite the above facts, appellant in his first 2255 motion made no mention of the presently urged conspiracy. The district judge in denying the requested hearing under § 2255 held that appellant in asserting “a conspiracy to procure and use perjured testimony gives no indication of anything other than what was considered at his trial.”
We have gone over the trial transcript carefully. We find nothing substantial now alleged by appellant, including all proper inferences, that was not before the court and jury at the trial and at the later sentencing of appellant. We think that the district judge, with full appreciation of the requirements of § 2255, rightly denied the hearing requested under this motion.
The order of the district court will be affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
TENORE v. UNITED STATES.
No. 4748.
United States Court of Appeals First Circuit.
Oct. 29, 1953.
David Lavien, Boston, Mass. (Samuel Green and Green, Green, Romprey & Sullivan, Manchester, N. H., with him on the brief), for appellant.
D. Frederick O’Connor, Asst. U. S. Atty., Manchester, N. H., (Robert D. Branch, Asst. U. S. Atty., Concord, N. H., with him on the brief), for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal from a judgment sentencing the defendant to a fine and imprisonment after a jury had found him guilty as charged in an indictment for conspiracy laid under Title 18 U.S.C. § 371 to violate Title 26 U.S.C. §§ 2810, 2833, 3321, the first paragraph of § 2834 and § 2803(a), that is to say, conspiracy to operate a still in violation of federal law.
Federal enforcement officers kept the Morelli Farm, so called, in Atkinson, New Hampshire, under surveillance for several weeks during the late spring and early summer of 1951, and on July 11, they obtained a warrant to search the premises. The warrant was served about 6:45 P.M. on July 16, and at that time a large still was found in full operation in the barn in clear violation of federal law. It was attended at the time by a young man stripped to the waist who was sitting beside it reading a comic book entitled “Crime Does Not Pay.” Several persons, including the defendant-appellant Tenore, were found on the premises and placed under arrest.
There can be no doubt that at least some of the persons arrested had conspired to operate an illegal still on the Morelli Farm, and that one or more of them had done overt acts in furtherance of the illegal design. We do not understand the appellant seriously to contend otherwise. The principal question Tenore presents is whether the evidence as a whole is sufficient to show beyond a reasonable doubt that he was one of the conspirators.
When the raiding officers entered the premises Tenore was found stripped to the waist lying or sitting on the ground under some trees across a driveway about ten feet, or perhaps more, from the entrance to the barn. He admitted to the officer who arrested him that he came from New Jersey, where several other persons arrested on the premises at the time also came from, and that he had been on the premises for four days. Then soon after his arrest he asked for and was given permission to obtain some additional clothing, and he went into the bam with an officer, took down some clothing hanging beside the still from a nail and put the clothing on. Later at his request more clothing which he described and claimed as his was brought to him from the house.
Perhaps the foregoing evidence might not be enough to support a conviction for a substantive offense under any one of the sections of Title 26 enumerated above. But certainly it indicates more than a casual innocent association with those who were actually operating the illegal still, or a mere chance presence upon the premises where the illegal still was located. Cf. Girgenti v. United States, 3 Cir., 1936, 81 F.2d 741; Matthews v. United States, 5 Cir., 1949, 177 F.2d 278; Graceffo v. United States, 3 Cir., 1931, 46 F.2d 852; United States v. De Vito, 2 Cir., 1934, 68 F.2d 837. We think the evidence clearly warrants an inference by the jury that beyond a reasonable doubt Tenore had knowingly engaged in concerted action, if not with those who had set up the still on. the premises, at least with .those who were actually operating it at the time the search warrant was served. See Butler v. United States, 10 Cir., 1952, 197 F.2d 561, 563. There is so little doubt of this in our minds that we see no object in laboring the point further.
Objections made by appellant to the admission of certain evidence require only brief consideration.
To show Tenore’s connection with the illegal distilling venture undertaken on the Morelli Farm the Government introduced evidence that early in March 1951 Tenore visited a store dealing in oil burners and enquired if a certain oil burner there on display could be used to operate a still. This evidence indicates an interest by Tenore in setting up or operating a still, and the fact that there is no evidence that Tenore bought the oil burner in question, or any other, or that the oil burner about which he enquired, or one like it, was used to fire the still found on the Morelli Farm, detracts from the weight of the evidence but does not entirely destroy its probative force.
For the same purpose the Government also introduced evidence that Tenore had purchased a hand operated pump of a certain type on July 2, 1951, and that a carton in which a pump of the same type was packaged by the manufacturer was found on premises in Saugus, Massachusetts, where alcohol made on the Morelli Farm was taken, apparently for storage. This evidence also has some tendency to show Tenore’s connection with the illegal distilling venture in Atkinson. The fact that no. pump of the type was found at the still detracts from the force of the evidence but does not wholly destroy its value. The two foregoing items of evidence standing alone, we agree, would not be enough to show the appellant’s participation in the conspiracy alleged. But. nevertheless it has some tendency to bolster the other evidence of Tenore’s participation in the illegal enterprise carried on at the Morelli Farm. We see no error in admitting the evidence for what it might be worth.
Other objections made by the appellant have been considered but we do not think them of sufficient moment to merit discussion.
The judgment of the District Court is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Appellee, v. Gregory Christopher BAILEY, Appellant. UNITED STATES of America, Appellee, v. James Henry BROWN, Appellant. UNITED STATES of America, Appellee, v. Irving Marion MAXWELL, Appellant. UNITED STATES of America, Appellee, v. Robert Lee MORROW, Appellant. UNITED STATES of America, Appellee, v. Larry Eugene WALLACE, Appellant.
Nos. 73-2374 to 73-2378.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 30, 1974.
Decided Jan. 31, 1975.
David R. Badger, Charlotte, N. C. (Court-appointed), for appellant in No. 73-2377.
Keith M. Stroud, .Charlotte, N. C. (Court-appointed), for appellant in No. 73-2374.
Donald M. Tepper, New York City (Court-appointed), for appellant in No. 73-2378.
James M. Shannonhouse, Jr., Charlotte, N. C. (Court-appointed), for appellant in No. 73 — 2375.
Peter Goldberger, Third-year law student (Lila Bellar, Charlotte, N. C. (Court-appointed), on brief), for appellant in No. 73-2376.
Michael S. Scofield, Asst. U. S. Atty. (Keith S. Snyder, U. S. Atty., on brief), for appellee in Nos. 73-2374, 73-2375, 73-2376, 73-2377 and 73-2378.
Before BRYAN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit J udges.
ALBERT V. BRYAN, Senior Circuit Judge:
In three counts, George Christopher Bailey, James Henry Brown, Robert Lee Morrow and Larry Eugene Wallace were charged with the robbery of the Northeast Branch, North Carolina National Bank at Charlotte, North Carolina on July 9, 1973 in violation of 18 U.S.C. § 2113, and Irving Marion Maxwell was indicted with them as an aider and abettor, 18 U.S.C. § 2(a). Tried together, all five were found guilty. Bailey, Brown, Morrow and Wallace were each sentenced to 18 years imprisonment, and Maxwell to 14. They appeal.
With an exception now to be mentioned, no substantive defect in trial is to. be found in any of these cases. The exception is in the sentencing of defendants Bailey, Morrow and Wallace but the findings of their guilt are affirmed. Each of these three, however, was under 22 years of age at the time of conviction and so were eligible for consideration under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005, 5006(e) et seq.
In argument at the bar of this court the United States Attorney called our attention to the circumstance that as to these three defendants before pronouncing sentence the District Court had not made the requisite finding upon whether any of them would benefit from treatment under the Act, 18 U.S.C. § 5010(d). For this omission the prosecution confessed error. It moved that these cases be remanded to the District Court to pass such new judgments on the verdicts as it may deem just after resolution of the question of benefit. Dorszynski v. U. S., 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). It will be so ordered.
Another defendant, Brown, was 22 years of age at the time sentence was passed upon him and hence not within the mandates of the Youth Corrections Act. But since he had not reached 26, the treatment outlined in that Act was permissibly available for his sentence as an adult offender, 18 U.S.C. § 4209. Nevertheless, we do not hold this optional use of the latter section an indispensable consideration prerequisite to recourse to the regular adult punishments for offenses like Brown’s. However, since he is a contemporary of his companions in crime, it would not seem amiss, if the District Court saw fit, to allow him the advantages of the Youth Corrections Act as far as extendable under § 4209. Consequently, his case will be remanded to the District Court for that consideration. See United States v. Wilson, 450 F.2d 495, 498 (4 Cir. 1971).
Defendant Maxwell, since he was twenty-two years old when convicted, was not eligible for treatment under the Youth Corrections Act, but he asks to be adjudged an “eligible offender” with the propitious provisions of the Narcotic Addict Rehabilitation Act of 1966, 18 U.S.C. §§ 4251, 4252, as amended.
At the time of his sentencing the District Judge said: “Now, Mr. Maxwell, at your age, you will be considered for parole after you serve one-third of that time. If your habit is as bad as you say it is you will need that length of time and maybe more to get rid of that habit. It is recommended that the defendant be examined to determine whether or not he is a narcotic addict and in the event he is that he be given the necessary treatment”. The record discloses no report made to the Court, after the commitment to the Attorney General, on whether he was an addict. However, there is no necessity to delve into it further because he does not qualify for the treatment provided by the Narcotic Act for an eligible offender as set forth in 18 U.S.C. § 4253.
This is because he had been “convicted of a crime of violence”. 18 U.S.C. § 4251(f)(1). As defined in this Act a crime of( violence “includes robbery . . . extortion accompanied by threats of violence, assault with a dangerous weapon or assault with' intent to commit any offense punishable by imprisonment for more than one year”. 18 U.S.C. § 4251(b). Maxwell’s principals were convicted of violating the bank robbery statute, 18 U.S.C. § 2113. It embraced the taking by force, violence and intimidation of $15,533.75 belonging to or in the possession of a bank and, in the commission of that act, assaulting a person. The crime comprised the putting in jeopardy of the life of the person by the use of a dangerous weapon. These offenses were punishable by imprisonment for more than one year.
Maxwell was convicted of aiding and abetting his co-defendants in the perpetration of these crimes. Therefore, since 18 U.S.C. § 2(a) declares that “whoever commits an offense against the United States or aids [and] abets ... its commission, is punishable as a principal”, then he has been “convicted of a crime of violence”, which disqualifies him for treatment as an eligible offender under the Narcotic Act.
His participation was not simply passive or consultive. His four fellows entered the bank with sawed-off shotguns and a hand gun, presenting the weapons at the faces of the employees and warning that they would be killed if they did not cooperate with the four robbers. All the while Maxwell was waiting for them outside in an escape car. He drove them away immediately as they emerged from the bank. There was a running gun battle between the automobile’s occupants and the police then in pursuit. The car was wrecked and four of the occupants including Maxwell then fled, leaving one of the robbers in the car. A trail of currency and weapons was left by the car and Maxwell with two of the robbers was found hiding in a culvert with large sums of paper money floating about.
Nevertheless, like Brown Maxwell was twenty-two years old when convicted. His case likewise should be remanded to the District Court to consider whether the provisions of the Youth Corrections Act, as allowed by § 4209, should avail him.
No ground appears for interfering with the guilty verdicts as to any of the appellants or with the judgments entered against appellants Brown and Maxwell.
Vacated in part; affirmed in part, and remanded.
. The Act, 18 U.S.C. § 5006(e), states that a “ ‘Youth offender’ means a person under the age of twenty-two years at the time of conviction”. It states, too, that “ ‘Conviction’ means the judgment on the verdict or finding of guilty . . In passing sentence the District Judge noted to Brown that his age was twenty-two. Thus he was not under the Act a “youth offender”,
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_declarationuncon
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules.
BURGETT v. TEXAS.
No. 53.
Argued October 18, 1967.
Decided November 13, 1967.
Gordon Gooch, by appointment of the Court, 386 U. S. 963, argued the cause and filed briefs for petitioner.
Leon Douglas argued the cause for respondent. With him on the brief were Crawford Martin, Attorney General of Texas, George Cowden, First Assistant Attorney General, A. J. Carubbi and R. L. Lattimore.
Mr. Justice Douglas
delivered the opinion of the Court.
Petitioner was convicted of “assault with malice aforethought with intent to murder; repetition of offense.” The jury fixed the punishment at 10 years in the Texas State Penitentiary. On appeal, the Texas Court of Criminal Appeals affirmed petitioner’s conviction. We granted certiorari, 386 U. S. 931.
Petitioner was charged in a five-count indictment. In the first count the State alleged that he had cut one Bradley with a knife and had stabbed at Bradley’s throat with intent to kill. Pursuant to the Texas recidivist statutes, the remaining counts of the indictment consisted of allegations that petitioner had incurred four previous felony convictions: a Texas conviction for burglary, and three Tennessee convictions for forgery. If these allegations were found to be true, petitioner would be subject to a term of life imprisonment upon conviction of the offense charged in count one.
Petitioner’s counsel filed a pretrial motion to quash the four counts of the indictment referring to the prior convictions for failure to apprise the defense of what the State would attempt to prove. The record is silent as to the court’s action on this motion. But when the indictment was read to the jury at the beginning of the trial, before any evidence was introduced, the four counts relating to the prior convictions were included.
During the course of the trial, while the jury was present, the State offered into evidence a certified copy of one of the Tennessee convictions. The conviction read in part, “Came the Assistant Attorney-General for the State and the Defendant in proper person and without Counsel.” Petitioner’s counsel objected to the introduction of the record on the ground that the judgment on its face showed that petitioner was not represented by counsel in violation of the Fourteenth Amendment. There was no indication in the record that counsel had been waived. The court stated that it would reserve ruling on the objection, apparently to give the State an opportunity to offer any of the other convictions into evidence. The State then offered a second version of the same Tennessee conviction which stated that petitioner had appeared “in proper person” but did not contain the additional words “without counsel.” This second version also stated that “After said jury had heard the evidence, argument of counsel, and the charge of the Court, they retired to consider of their verdict.” It is not clear, however, whether “counsel” was being used in the singular or plural, and in any event no explanation was offered for the discrepancy between the two records. Petitioner’s counsel objected to this second version on the same ground. The court again reserved its ruling.
The State then offered into evidence a certified copy of the indictment in the prior Texas case. Petitioner’s counsel indicated he had no objection, and that record was received into evidence. Thereafter, testimony was offered concerning the judgment and sentence in the prior Texas case. After some testimony had been given, the jury was excused and the hearing continued out of its presence. At the conclusion of the hearing, petitioner’s attorney objected that the Texas judgment was void on its face under state law. The court sustained that objection, and the record of the Texas conviction was stricken from evidence. At the same time, the court sustained petitioner’s objection to the first version of the Tennessee conviction; but overruled the objection to the second version of the same conviction. The jury was then recalled and testimony was heard on the substantive offense charged. The next reference to the prior convictions was when the court instructed the jury not to consider the prior offenses for any purpose whatsoever in arriving at the verdict.
Petitioner’s motion for a new trial was denied. In the Court of Criminal Appeals, petitioner argued, inter alia, that the court erred in permitting counts two through five of the indictment to be read to the jury at the beginning of the trial, and in failing to sustain petitioner’s objection to the admission into evidence of the second version of the Tennessee conviction. The Court of Criminal Appeals held that since petitioner had not suffered the enhanced punishment provided by the recidivist statutes, and since the instruction to disregard the prior offenses had been given, no error was presented.
We do not sit as a court of criminal appeals to review state cases. The States are free to provide such procedures as they choose, including rules of evidence, provided that none of them infringes a guarantee in the Federal Constitution. The recent right-to-counsel cases, starting with Gideon v. Wainwright, 372 U. S. 335, are illustrative of the limitations which the Constitution places on state criminal procedures. Those limitations sometimes touch rules of evidence.
The exclusion of coerced confessions is one example. Chambers v. Florida, 309 U. S. 227.
The exclusion of evidence seized in violation of the Fourth and Fourteenth Amendments is another. Mapp v. Ohio, 367 U. S. 643.
Still another is illustrated by Pointer v. Texas, 380 U. S. 400. In that case we held that a transcript of a preliminary hearing had to be excluded from a state criminal trial because the defendant had no lawyer at that hearing, and did not, therefore, have the opportunity to cross-examine the principal witness against him who since that time had left the State. The exclusionary rule that we fashioned was designed to protect the privilege of confrontation guaranteed by the Sixth Amendment and made applicable to the States by the Fourteenth.
The same result must follow here. Gideon v. Wainwright established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. And that ruling was not limited to prospective applications. See Doughty v. Maxwell, 376 U. S. 202; Pickelsimer v. Wainwright, 375 U. S. 2. In this case the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 369 U. S. 506. To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U. S. 269) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.
The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error “harmless beyond a reasonable doubt” within the meaning of Chapman v. California, 386 U. S. 18.
Our decision last Term in Spencer v. Texas, 385 U. S. 554, is not relevant to our present problem. In Spencer the prior convictions were not presumptively void. Moreover, the contention was that the guilt phase of the trial was prejudiced by the introduction of the evidence of prior crimes. As the Court noted, “[i]n the procedures before us ... no specific federal right — such as that dealing with confessions — is involved; reliance is placed solely on a general ‘fairness’ approach.” Id., at 565. In this case, however, petitioner’s right to counsel, a “specific federal right,” is being denied anew. This Court cannot permit such a result unless Gideon v. Wainwright is to suffer serious erosion.
Reversed.
The maximum penalty for a first conviction of assault with intent to murder is 25 years; the minimum penalty is two years. Tex. Pen. Code, Art. 1160 (Supp. 1966).
Burgett v. State, 397 S. W. 2d 79 (1965).
The statutes involved here are Articles 62 and 63 of the Tex. Pen. Code (1952).
Article 62 provides: “If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”
Article 63 provides: “Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”
Tex. Pen. Code, Art, 63 (1952).
In petitioner’s amended motion for a new trial, which was denied by the court, he explained that the purpose of the pretrial motion was “so that defendant could establish their [the previous convictions alleged for enhancement] admissibility before they were read into the record in the presence of the jury; same reading into the record in the presence of the jury was prejudicial to defendant herein.”
The court apparently withdrew consideration of the prior convictions from the jury since only the record of the one prior Tennessee conviction for forgery had been accepted. Thus, Article 63 could not be applied to petitioner. Further, since forgery could not be considered as an offense of the “same nature” as assault with intent to murder, Article 62 would not be applicable. See n. 3, supra.
The State apparently did not attempt to introduce the records of the other two Tennessee convictions for forgery because the indictment showed that all of the convictions occurred on- the same date. To invoke the provisions of Article 63, each succeeding conviction must be subsequent in time to the previous conviction — both with respect to commission of the offense and to conviction. Cowan v. State, 172 Tex. Cr. R. 183, 355 S. W. 2d 521 (1962).
See, e. g., Boyd v. United States, 142 U. S. 450; United States v. Clarke, 343 F. 2d 90 (C. A. 3d Cir. 1965). Cf. Waldron v. Waldron, 156 U. S. 361, 383; Throckmorton v. Holt, 180 U. S. 552; Lawrence v. United States, 357 F. 2d 434 (C. A. 10th Cir. 1966); United States v. DeDominicis, 332 F. 2d 207 (C. A. 2d Cir. 1964).
What Mr. Justice Jackson said in Krulewitch v. United States, 336 U. S. 440, 445, 453 (concurring opinion), in the sensitive area of conspiracy is equally applicable in this sensitive area of repetitive crimes, “The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction.”
Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance?
A. No declaration of unconstitutionality
B. Act of Congress declared unconstitutional
C. State or territorial law, regulation, or constitutional provision unconstitutional
D. Municipal or other local ordinance unconstitutional
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.
Dennis OBDUSKEY, Petitioner
v.
MCCARTHY & HOLTHUS LLP
No. 17-1307
Supreme Court of the United States.
Argued January 7, 2019
Decided March 20, 2019
Kannon K. Shanmugam, Washington, DC, for Respondent.
Jonathan C. Bond for the United States as amicus curiae, by special leave of the Court, supporting the Respondent.
Daniel L. Geyser, Geyser P.C., Dallas, TX, for Petitioner.
Thomas J. Holthus, Matthew E. Podmenik, McCarthy & Holthus LLP, San Diego, CA, Holly R. Shilliday, McCarthy & Holthus LLP, Centennial, CO, Kannon K. Shanmugam, Masha G. Hansford, Joel S. Johnson, Michael J. Mestitz, Williams & Connolly LLP, Washington, DC, for Respondent.
Justice BREYER delivered the opinion of the Court.
The Fair Debt Collection Practices Act regulates " 'debt collector[s].' " 15 U.S.C. § 1692a(6) ; see 91 Stat. 874, 15 U.S.C. § 1692 et seq. A " 'debt collector,' " the Act says, is "any person ... in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts." § 1692a(6). This definition, however, goes on to say that "[f]or the purpose of section 1692f(6)" (a separate provision of the Act), "[the] term [debt collector] also includes any person ... in any business the principal purpose of which is the enforcement of security interests." Ibid.
The question before us concerns this last sentence. Does it mean that one principally involved in "the enforcement of security interests" is not a debt collector (except "[f]or the purpose of section 1692f(6)")? If so, numerous other provisions of the Act do not apply. Or does it simply reinforce the fact that those principally involved in the enforcement of security interests are subject to § 1692f(6) in addition to the Act's other provisions?
In our view, the last sentence does (with its § 1692f(6) exception) place those whose "principal purpose ... is the enforcement of security interests" outside the scope of the primary "debt collector" definition, § 1692a(6), where the business is engaged in no more than the kind of security-interest enforcement at issue here-nonjudicial foreclosure proceedings.
I
A
When a person buys a home, he or she usually borrows money from a lending institution, such as a bank. The resulting debt is backed up by a "mortgage"-a security interest in the property designed to protect the creditor's investment. Restatement (Third) of Property: Mortgages § 1.1 (1996) (Restatement). (In some States, this security interest is known as a "deed of trust," though for present purposes the difference is immaterial. See generally ibid. ) The loan likely requires the homeowner to make monthly payments. And if the homeowner defaults, the mortgage entitles the creditor to pursue foreclosure, which is "the process in which property securing a mortgage is sold to pay off the loan balance due." 2 B. Dunaway, Law of Distressed Real Estate § 15:1 (2018) (Dunaway).
Every State provides some form of judicial foreclosure: a legal action initiated by a creditor in which a court supervises sale of the property and distribution of the proceeds. Id. , § 16:1. These procedures offer various protections for homeowners, such as the right to notice and to protest the amount a creditor says is owed. Id. , §§ 16:17, 16:20; Restatement § 8.2. And in the event that the foreclosure sale does not yield the full amount due, a creditor pursuing a judicial foreclosure may sometimes obtain a deficiency judgment, that is, a judgment against the homeowner for the unpaid balance of a debt. National Consumer Law Center (NCLC), Foreclosures and Mortgage Servicing §§ 12.3.1-2 (5th ed. 2014).
About half the States also provide for what is known as nonjudicial foreclosure, where notice to the parties and sale of the property occur outside court supervision. 2 Dunaway § 17:1. Under Colorado's form of nonjudicial foreclosure, at issue here, a creditor (or more likely its agent) must first mail the homeowner certain preliminary information, including the telephone number for the Colorado foreclosure hotline. Colo. Rev. Stat. § 38-38-102.5(2) (2018). Thirty days later, the creditor may file a "notice of election and demand" with a state official called a "public trustee." § 38-38-101. The public trustee records this notice and mails a copy, alongside other materials, to the homeowner. §§ 38-38-102, 38-38-103. These materials give the homeowner information about the balance of the loan, the homeowner's right to cure the default, and the time and place of the foreclosure sale. §§ 38-38-101(4), 38-38-103. Assuming the debtor does not cure the default or declare bankruptcy, the creditor may then seek an order from a state court authorizing the sale. Colo. Rule Civ. Proc. 120 (2018); see Colo. Rev. Stat. § 38-38-105. (Given this measure of court involvement, Colorado's "nonjudicial" foreclosure process is something of a hybrid, though no party claims these features transform Colorado's nonjudicial scheme into a judicial one.) In court, the homeowner may contest the creditor's right to sell the property, and a hearing will be held to determine whether the sale should go forward. Colo. Rules Civ. Proc. 120(c), (d).
If the court gives its approval, the public trustee may then sell the property at a public auction, though a homeowner may avoid a sale altogether by curing the default up until noon on the day before. Colo. Rev. Stat. §§ 38-38-110, 38-38-104(VI)(b). If the sale goes forward and the house sells for more than the amount owed, any profits go first to lienholders and then to the homeowner. § 38-38-111. If the house sells for less than what is owed, the creditor cannot hold the homeowner liable for the balance due unless it files a separate action in court and obtains a deficiency judgment. See § 38-38-106(6); Bank of America v. Kosovich , 878 P.2d 65, 66 (Colo. App. 1994). Other States likewise prevent creditors from obtaining deficiency judgments in nonjudicial foreclosure proceedings. Restatement § 8.2. And in some States, pursuing nonjudicial foreclosure bars or curtails a creditor's ability to obtain a deficiency judgment altogether. NCLC, Foreclosures and Mortgage Servicing § 12.3.2.
B
In 2007, petitioner Dennis Obduskey bought a home in Colorado with a $ 329,940 loan secured by the property. About two years later, Obduskey defaulted.
In 2014, Wells Fargo Bank, N. A., hired a law firm, McCarthy & Holthus LLP, the respondent here, to act as its agent in carrying out a nonjudicial foreclosure. According to the complaint, McCarthy first mailed Obduskey a letter that said it had been "instructed to commence foreclosure" against the property, disclosed the amount outstanding on the loan, and identified the creditor, Wells Fargo. App. 37-38; see id. , at 23. The letter purported to provide notice "[p]ursuant to, and in compliance with," both the Fair Debt Collection Practices Act (FDCPA) and Colorado law. Id. , at 37. (The parties seem not to dispute that this and other correspondence from McCarthy was required under state law. Because that is a question of Colorado law not briefed by the parties before us nor passed on by the courts below, we proceed along the same assumption.) Obduskey responded with a letter invoking § 1692g(b) of the FDCPA, which provides that if a consumer disputes the amount of a debt, a "debt collector" must "cease collection" until it "obtains verification of the debt" and mails a copy to the debtor.
Yet, Obduskey alleges, McCarthy neither ceased collecting on the debt nor provided verification. App. 22-23. Instead, the firm initiated a nonjudicial foreclosure action by filing a notice of election and demand with the county public trustee. Ibid. ; see id. , at 39-41. The notice stated the amount due and advised that the public trustee would "sell [the] property for the purpose of paying the indebtedness." Id. , at 40.
Obduskey then filed a lawsuit in federal court alleging that the firm had violated the FDCPA by, among other things, failing to comply with the verification procedure. Id. , at 29. The District Court dismissed the suit on the ground that the law firm was not a "debt collector" within the meaning of the Act, so the relevant Act requirements did not apply. Obduskey v. Wells Fargo , 2016 WL 4091174, *3 (D. Colo., July 19, 2016).
On appeal, the Court of Appeals for the Tenth Circuit affirmed the dismissal, concluding that the "mere act of enforcing a security interest through a non-judicial foreclosure proceeding does not fall under" the Act. Obduskey v. Wells Fargo , 879 F.3d 1216, 1223 (2018).
Obduskey then petitioned for certiorari. In light of different views among the Circuits about application of the FDCPA to nonjudicial foreclosure proceedings, we granted the petition. Compare ibid. and Vien-Phuong Thi Ho v. ReconTrust Co., NA , 858 F.3d 568, 573 (C.A.9 2016) (holding that an entity whose only role is the enforcement of security interests is not a debt collector under the Act), with Kaymark v. Bank of America, N. A. , 783 F.3d 168, 179 (C.A.3 2015) (holding that such an entity is a debt collector for the purpose of all the Act's requirements), Glazer v. Chase Home Fin. LLC , 704 F.3d 453, 461 (C.A.6 2013) (same), and Wilson v. Draper & Goldberg, P. L. L. C. , 443 F.3d 373, 376 (C.A.4 2006) (same).
II
A
The FDCPA's definitional section, 15 U.S.C. § 1692a, defines a "debt" as:
"any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes." § 1692a(5) (emphasis added).
The Act then sets out the definition of the term "debt collector." § 1692a(6). The first sentence of the relevant paragraph, which we shall call the primary definition, says that the term "debt collector":
"means any person ... in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or asserted to be owed or due another." Ibid.
The third sentence, however, provides what we shall call the limited-purpose definition:
"For the purpose of section 1692f(6) [the] term [debt collector] also includes any person ... in any business the principal purpose of which is the enforcement of security interests." Ibid .
The subsection to which the limited-purpose definition refers, § 1692f(6), prohibits a "debt collector" from:
"Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if-
"(A) there is no present right to possession of the property ... ;
"(B) there is no present intention to take possession of the property; or
"(C) the property is exempt by law from such dispossession or disablement."
The rest of the Act imposes myriad other requirements on debt collectors. For example, debt collectors may not use or threaten violence, or make repetitive annoying phone calls. § 1692d. Nor can debt collectors make false, deceptive, or misleading representations in connection with a debt, like misstating a debt's "character, amount, or legal status." § 1692e. And, as we have mentioned, if a consumer disputes the amount of a debt, a debt collector must "cease collection" until it "obtains verification of the debt" and mails a copy to the debtor. § 1692g(b).
No one here disputes that McCarthy is, by virtue of its role enforcing security interests, at least subject to the specific prohibitions contained in § 1692f(6). The question is whether other provisions of the Act apply. And they do if, but only if, McCarthy falls within the scope of the Act's primary definition of "debt collector."
B
Three considerations lead us to conclude that McCarthy is not subject to the main coverage of the Act.
First , and most decisive, is the text of the Act itself. As a preliminary matter, we concede that if the FDCPA contained only the primary definition, a business engaged in nonjudicial foreclosure proceedings would qualify as a debt collector for all purposes. We have explained that a home loan is an obligation to pay money, and the purpose of a mortgage is to secure that obligation. See supra , at ----. Foreclosure, in turn, is "the process in which property securing a mortgage is sold to pay off the loan balance due." 2 Dunaway § 15:1. In other words, foreclosure is a means of collecting a debt. And a business pursuing nonjudicial foreclosures would, under the capacious language of the Act's primary definition, be one that "regularly collects or attempts to collect, directly or indirectly, debts." § 1692a(6).
It is true that, as McCarthy points out, nonjudicial foreclosure does not seek "a payment of money from the debtor " but rather from sale of the property itself. Brief for Respondent 17 (emphasis added). But nothing in the primary definition requires that payment on a debt come "from a debtor." The statute speaks simply of the "collection of any debts ... owed or due." § 1692a(6). Moreover, the provision sweeps in both "direc[t]" and "indirec[t]" debt collection. Ibid. So, even if nonjudicial foreclosure were not a direct attempt to collect a debt, because it aims to collect on a consumer's obligation by way of enforcing a security interest, it would be an indirect attempt to collect a debt.
The Act does not, however, contain only the primary definition. And the limited-purpose definition poses a serious, indeed an insurmountable, obstacle to subjecting McCarthy to the main coverage of the Act. It says that "[f]or the purpose of section 1692f(6) " a debt collector "also includes" a business, like McCarthy, "the principal purpose of which is the enforcement of security interests." § 1692a(6) (emphasis added). This phrase, particularly the word "also," strongly suggests that one who does no more than enforce security interests does not fall within the scope of the general definition. Otherwise why add this sentence at all?
It is logically, but not practically, possible that Congress simply wanted to emphasize that the definition of "debt collector" includes those engaged in the enforcement of security interests. But why then would Congress have used the word "also"? And if security-interest enforcers are covered by the primary definition, why would Congress have needed to say anything special about § 1692f(6)? After all, § 1692f(6), just like all the provisions applicable to debt collectors, would have already applied to those who enforce security interests. The reference to § 1692f(6) would on this view be superfluous, and we "generally presum[e] that statutes do not contain surplusage." Arlington Central School Dist. Bd. of Ed. v. Murphy , 548 U.S. 291, 299, n. 1, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006). By contrast, giving effect to every word of the limited-purpose definition narrows the primary definition, so that the debt-collector-related prohibitions of the FDCPA (with the exception of § 1692f(6)) do not apply to those who, like McCarthy, are engaged in no more than security-interest enforcement.
Second , we think Congress may well have chosen to treat security-interest enforcement differently from ordinary debt collection in order to avoid conflicts with state nonjudicial foreclosure schemes. As Colorado's law makes clear, supra , at ---- - ----, state nonjudicial foreclosure laws provide various protections designed to prevent sharp collection practices and to protect homeowners, see 2 Dunaway § 17:1. And some features of these laws are in tension with aspects of the Act. For example, the FDCPA broadly limits debt collectors from communicating with third parties "in connection with the collection of any debt." § 1692c(b). If this rule were applied to nonjudicial foreclosure proceedings, then advertising a foreclosure sale-an essential element of such schemes-might run afoul of the FDCPA. Given that a core purpose of publicizing a sale is to attract bidders, ensure that the sale price is fair, and thereby protect the borrower from further liability, the result would hardly benefit debtors. See 2 Dunaway § 17:4. To be sure, it may be possible to resolve these conflicts without great harm to either the Act or state foreclosure schemes. See Heintz v. Jenkins , 514 U.S. 291, 296-297, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995) (observing that the FDCPA's protections may contain certain "implici[t] exception[s]"). But it is also possible, in light of the language it employed, that Congress wanted to avoid the risk of such conflicts altogether.
Third , for those of us who use legislative history to help interpret statutes, the history of the FDCPA supports our reading. When drafting the bill, Congress considered a version that would have subjected security-interest enforcers to the full coverage of the Act. That version defined a debt collector as "any person who engages in any business the principal purpose of which is the collection of any debt or enforcement of security interests. " S. 918, 95th Cong., 1st Sess., § 803(f) (1977) (emphasis added). A different version of the bill, however, would have totally excluded from the Act's coverage "any person who enforces or attempts to enforce a security interest in real or personal property." S. 1130, 95th Cong., 1st Sess., § 802(8)(E) (1977). Given these conflicting proposals, the Act's present language has all the earmarks of a compromise: The prohibitions contained in § 1692f(6) will cover security-interest enforcers, while the other "debt collector" provisions of the Act will not.
These considerations convince us that, but for § 1692f(6), those who engage in only nonjudicial foreclosure proceedings are not debt collectors within the meaning of the Act.
III
Obduskey makes several arguments to the contrary. But, on balance, we do not find them determinative.
First , Obduskey acknowledges that unless the limited-purpose definition is superfluous, it must make some kind of security-interest enforcer a "debt collector" who would not otherwise fall within the primary definition. Reply Brief 11-13. But, according to Obduskey, "repo men"-those who seize automobiles and other personal property in response to nonpayment-fit the bill. See Black's Law Dictionary 1493 (10th ed. 2014) (explaining that "repo" is short for "repossession," which means "retaking property; esp., a seller's retaking of goods sold on credit when the buyer has failed to pay for them"). This is so, he says, because repossession often entails only "limited communication" with the debtor, as when the repo man sneaks up and "tows a car in the middle of the night." Brief for Petitioner 25-26, and n. 13. And because, according to Obduskey, the language of § 1692f(6), which forbids "[t]aking or threatening to take any nonjudicial action to effect dispossession or disablement of property," applies more naturally to the seizure of personal property than to nonjudicial foreclosure. (Emphasis added.)
But we do not see why that is so. The limited-purpose provision speaks broadly of "the enforcement of security interests," § 1692a(6), not "the enforcement of security interests in personal property "; if Congress meant to cover only the repo man, it could have said so. Moreover, Obduskey's theory fails to save the limited-purpose definition from superfluity. As we have just discussed, supra , at ---- - ----, if the Act contained only the primary definition, enforcement of a security interest would at least be an indirect collection of a debt. The same may well be true of repo activity, a form of security-interest enforcement, as the point of repossessing property that secures a debt is to collect some or all of the value of the defaulted debt. And while Obduskey argues that the language of § 1692f(6) fits more comfortably with repossession of personal property than nonjudicial foreclosure, we think it at least plausible that "threatening" to foreclose on a consumer's home without having legal entitlement to do so is the kind of "nonjudicial action" without "present right to possession" prohibited by that section. § 1692f(6)(A). (We need not, however, here decide precisely what conduct runs afoul of § 1692f(6).)
We are also unmoved by Obduskey's argument that repossession would not fall under the primary definition because it generally involves only limited communication with the debtor. For one thing, while some of the FDCPA's substantive protections apply where there has been a "communicat[ion]" with a consumer, see, e.g. , § 1692c, the primary definition of debt collector turns on the "collection of ... debts," without express reference to communication, § 1692a(6). For another, while Obduskey imagines a silent repo man striking in the dead of night, state law often requires communication with a debtor during the repossession process, such as notifying a consumer of a sale. NCLC, Repossessions § 10.4 (9th ed. 2017).
Second , Obduskey points to the Act's venue provision, 15 U.S.C. § 1692i(a), which states that "[a]ny debt collector who brings any legal action on a debt against any consumer shall ... in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district" where the "property is located." (Emphasis added.) This provision, he says, makes clear that a person who judicially enforces a real-property-related security interest is a debt collector; hence, a person who nonjudicially enforces such an interest must also be a debt collector. Indeed, he adds, this subsection "only makes sense" if those who enforce security interests in real property are debt collectors subject to all prohibitions and requirements that come with that designation. Brief for Petitioner 21.
This argument, however, makes too much of too little. To begin with, the venue section has no direct application in this case, for here we consider nonjudicial foreclosure. And whether those who judicially enforce mortgages fall within the scope of the primary definition is a question we can leave for another day. See 879 F.3d at 1221-1222 (noting that the availability of a deficiency judgment is a potentially relevant distinction between judicial and nonjudicial foreclosures).
More to the point, the venue provision does nothing to alter the definition of a debt collector. Rather, it applies whenever a "debt collector" brings a "legal action ... to enforce an interest in real property." § 1692i(a)(1). In other words, the provision anticipates that a debt collector can bring a judicial action respecting real property, but it nowhere says that an entity is a debt collector because it brings such an action. Obduskey suggests that under our interpretation this provision will capture a null set. We think not. A business that qualifies as a debt collector based on other activities (say, because it "regularly collects or attempts to collect" unsecured credit card debts, § 1692a(6) ) would have to comply with the venue provision if it also filed "an action to enforce an interest in real property," § 1692i(a)(1). Here, however, the only basis alleged for concluding that McCarthy is a debt collector under the Act is its role in nonjudicial foreclosure proceedings.
Third , Obduskey argues that even if "simply enforcing a security interest" falls outside the primary definition, McCarthy engaged in more than security-interest enforcement by sending notices that any ordinary homeowner would understand as an attempt to collect a debt backed up by the threat of foreclosure. Brief for Petitioner 15-16; see Reply Brief 13. We do not doubt the gravity of a letter informing a homeowner that she may lose her home unless she pays her outstanding debts. But here we assume that the notices sent by McCarthy were antecedent steps required under state law to enforce a security interest. See supra , at ----. Indeed, every nonjudicial foreclosure scheme of which we are aware involves notices to the homeowner. See 2 Dunaway § 17:4 (describing state procedures concerning notice of sale). And because he who wills the ends must will the necessary means, we think the Act's (partial) exclusion of "the enforcement of security interests" must also exclude the legal means required to do so. This is not to suggest that pursuing nonjudicial foreclosure is a license to engage in abusive debt collection practices like repetitive nighttime phone calls; enforcing a security interest does not grant an actor blanket immunity from the Act. But given that we here confront only steps required by state law, we need not consider what other conduct (related to, but not required for, enforcement of a security interest) might transform a security-interest enforcer into a debt collector subject to the main coverage of the Act.
Finally , Obduskey fears that our decision will open a loophole, permitting creditors and their agents to engage in a host of abusive practices forbidden by the Act. States, however, can and do guard against such practices, for example, by requiring notices, review by state officials such as the public trustee, and limited court supervision. See supra , at ---- - ----, ----. Congress may think these state protections adequate, or it may choose to expand the reach of the FDCPA. Regardless, for the reasons we have given, we believe that the statute exempts entities engaged in no more than the "enforcement of security interests" from the lion's share of its prohibitions. And we must enforce the statute that Congress enacted.
For these reasons, the judgment of the Court of Appeals is
Affirmed.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Darrell Gene BLACKBURN, Petitioner-Appellant, v. Armond CROSS, Chairman and Commissioners, Probation & Parole Commission, State of Florida, Respondents-Appellees.
No. 74-2333.
United States Court of Appeals, Fifth Circuit.
April 2, 1975.
Rehearing and Rehearing En Banc Denied Aug. 6, 1975.
Philip A. Hubbart, Public Defender, Bennett H. Brummer, Stephen N. Lipton, Asst. Public Defenders, Miami, Fla., for petitioner-appellant.
Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Stephen V. Rosin, So. Miami, Fla., Asst. Attys. Gen., for respondentsappellees.
Before MORGAN and CLARK, Circuit Judges, and GORDON, District Judge.
LEWIS R. MORGAN, Circuit Judge:
At issue in this case is the retroactivity vel non of the principle announced in Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972). We believe that the weight of precedent supports the retroactive application of the Wingate principle, and we therefore reverse the district court.
I.
On January 19, 1967, the petitioner was charged in an amended information with (1) breaking and entering a dwelling and unlawfully assaulting a person therein, and (2) attempted crime against nature. The petitioner entered a plea of not guilty and the trial by jury commenced.
At trial, Rosemarie Fletcher identified the petitioner as the person who broke into her apartment and attempted to sexually assault her. She had seen only the profile and back of her assailant, but she furnished police with a description of the assailant and she identified the petitioner in a line-up. In addition to Fletcher, the state presented the testimony of two additional women, Catherine Austin and Patricia McCune, both of whom lived in the same apartment complex as Fletcher. Austin and McCune identified the petitioner as the assailant who had likewise broken into their apartments and had sexually assaulted them.
The petitioner had previously been acquitted after a trial by jury of the assault on McCune. At trial for the assault on Fletcher, McCune’s testimony was admitted over petitioner’s objection as evidence of a similar offense tending to establish the identity of the petitioner as Fletcher’s assailant.
Petitioner testified in his own behalf and presented an alibi defense. In addition to the three positive identifications of the petitioner,.the state presented evidence that four fingerprints of one hand and the thumb print of the other hand lifted from the jalousie window slats of the kitchen door of Fletcher’s apartment (where the breakin occurred) were those of the petitioner.
The guilty verdict was followed by an unsuccessful direct appeal in which the petitioner claimed that McCune’s testimony was improperly admitted into evidence. Blackburn v. State, 208 So.2d 625 (Fla.App.1968). Defendant’s petition for a writ of habeas corpus — alleging that the holding in Wingate should be retroactively applied to his trial, and, hence that McCune’s testimony was inadmissible — was subsequently denied by the district court.
II.
The collateral estoppel notion, upon which petitioner relies, has been applied in the area of criminal law only recently.
In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) a federal habeas corpus petitioner attacked his state conviction for the robbery of one of six men engaged in a poker game. The petitioner had previously been acquitted of the robbery of another one of the same poker players. The single issue in dispute at both trials was whether the petitioner had been one of the robbers. The Supreme Court held that the federal notion of collateral estoppel precluded relitigation of the petitioner’s participation in the robbery and that this rule is embodied in the double jeopardy clause of the Fifth Amendment.
In Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972) this Circuit significantly expanded the Ashe holding. In Wingate a federal habeas corpus petitioner attacked his conviction for the robbery of a small store. At his trial, the state introduced evidence tending to show that Wingate had committed four additional robberies; he had been tried for and acquitted of two of these robberies. In his closing remarks there was heavy reliance by the prosecutor on the evidence of additional robberies.
This court held that Ashe does not merely bar a subsequent state prosecution, the maintenance of which depends upon a successful relitigation of a fact issue which had previously been settled adversely to the state by an earlier acquittal. Rather, the double jeopardy clause, which includes the doctrine of collateral estoppel under Ashe, prohibits the state from relitigating, for any purpose, an issue which was determined in a prior prosecution of the same party. Hence, there is no difference between relitigating an ultimate fact or an evidentiary fact; relitigation of either is prohibited.
III.
Blackburn’s trial occurred before our decision in Wingate. Since the facts before us are virtually identical to those of Wingate, we must determine whether Wingate is to be applied retroactively.
In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court held that the Constitution neither prohibits nor requires retroactive application of new decisions. In considering the retroactivity of subsequent rulings, the Court resolved to look at the prior history of the rule in question, its purpose and effect, and whether retrospective effect furthers or retards its operation. Id. at 626, 85 S.Ct. 1731.
Shortly thereafter, the standards for retroactive application were codified in a three-pronged test:
(a) The purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of the new standards. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967).
“ Foremost among these factors is the purpose to be served by the new constitutional rule.” Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969). Substantial consideration should be given the last two factors “only when the purpose of the rule in question [does] not clearly favor either retroactivity or prospectivity.” Id. at 251, 89 S.Ct. at 1035; see Michigan v. Payne, 412 U.S. 47, 55, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973); United States v. Scott, 425 F.2d 55, 58 (9th Cir. 1970) (en banc). Moreover,
[w]here the major purpose of a new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truthfinding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances. Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971) (plurality opinion).
Hence, retroactivity has been denied where a new rule serves a broad social policy, Williams v. Estelle, 500 F.2d 206, 208 (5th Cir. 1974), where the rule does not go to the fairness of the trial, or where the flaw in the fact-finding process is either of secondary importance or of infrequent occurrence, United States v. Scott, 425 F.2d 55 (9th Cir. 1970) (en banc) and cases cited therein. But where a new rule is fashioned to correct a serious flaw in the fact-finding process and therefore goes to the basic integrity and accuracy of the guilt-innocence determination, retroactive effect is required. United States v. Scott, supra, at 58 and cases cited therein; see Williams v. Estelle, supra, 500 F.2d at 208.
We must therefore determine the purpose behind the Wingate rule and whether this purpose relates to the integrity of the fact-finding system. The Wingate case, of course, held that the double jeopardy clause, which includes the doctrine of collateral estoppel, prohibits a state from relitigating any issue which was determined in a prior prosecution of the same party. The purpose of this rule is bound up in the whole complex of values that the guarantee against double jeopardy represents. Cf. Tehan v. Shott, 382 U.S. 406, 414, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966).
The policy underlying the prohibition against double jeopardy
is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971).
In order to protect “a man who has been acquitted from having to ‘run the gantlet’ a second time,” Ashe incorporated the rule of collateral estoppel into the guarantee of double jeopardy. Ashe v. Swenson, 397 U.S. 436, 446, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). Wingate expanded this notion to include evidentiary as well as ultimate facts because
[i]t is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded he did not commit. Otherwise a person could never remove himself from the blight and suspicious aura which surround an accusation that he is guilty of a specific crime. Wingate v. Wainwright, 464 F.2d 209, 215 (5th Cir. 1972).
The Wingate court indicated that this evidence of prior acquittals was “prejudicial” and, hence, admission of such evidence could certainly influence the integrity of the fact-finding system. We therefore find that the Wingate rule warrants retroactive application.
IV.
The state argues that any error made in Blackburn’s trial was harmless, but petitioner responds that it would be inappropriate to apply the “harmless error anlaysis” to a double jeopardy claim. We need not decide whether a collateral estoppel claim is susceptible to harmless error analysis, for we find that the error committed in this case could not be adjudged harmless even if the appropriate constitutional standards were applied.
Recent Supreme Court decisions regarding “harmless constitutional error” inquire as to “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). Only if the court can declare with confidence “beyond a reasonable doubt” that such a possibility is excluded by the record can it declare a constitutional error harmless. Id. at 24, 87 S.Ct. 824; see Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Null v. Wainwright, 508 F.2d 340 (5th Cir. 1973); Vaccaro v. United States, 461 F.2d 626, 637-38 (5th Cir. 1972).
The evidence against Blackburn was quite convincing. However, in his closing argument the prosecuting attorney disparaged the testimony of Fletcher (the alleged victim in the case sub judice) and relied upon the combined effect of all three identifications to establish reliability. Under these circumstances it is impossible for us to conclude that the erroneous admission of McCune’s testimony was harmless beyond a reasonable doubt.
Reversed and remanded with directions to issue the writ, subject to the state’s right to re-try the defendant.
. Petitioner was paroled on May 1, 1973, from the sentence presently under attack.
. Petitioner contends that the Wingate court’s application of the modified Ashe principle to a conviction that became final prior to the date of the Ashe decision is indicative of this court’s view of the retroactivity question. That is, petitioner contends that this court applied the collateral estoppel rule retroactively in reversing the denial of habeas corpus relief to Wingate.
While there is some dicta suggesting that a review of a denial of habeas corpus relief effectively enunciates a retroactive rule, see Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Williams v. Estelle, 500 F.2d 206 (5th Cir. 1974), we need not decide that question because we find that a retroactive application of the Wingate rule is required by the Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) analysis.
Petitioner also contends that Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) mandates a retroactive application of Wingate. In Robinson the Supreme Court held that Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) which barred a state and municipal prosecution for the same act or offense, fully retroactive. The court indicated that “[t]he prohibition against being placed in double jeopardy is not readily susceptible of analysis under the Linkletter line of cases.” Robinson v. Neil, supra, 409 U.S. at 508, 93 S.Ct. at 878.
We believe that the Supreme Court’s retroactive application of double jeopardy principles, see Robinson v. Neil, supra, lends support to the conclusion that the Wingate decision should be retroactively applied. Cf. Vaccaro v. United States, 461 F.2d 626, 632-33 (5th Cir. 1972). However, we do not believe that Robinson is entirely dispositive of the question before us, for the rationale of Robinson was based upon the fact that double jeopardy principles normally preclude a new trial entirely, while procedural guarantees merely relate to the method of conducting trials:
The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Link-letter cases were found not to effect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as 'the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the Court’s ruling was squarely directed to the prevention of the second trial’s taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant. Robinson v. Neil, supra] 409 U.S. at 509, 93 S.Ct. at 878.
While the Wingate rule is rooted in the principle of double jeopardy, its operation merely precludes the introduction of certain disfavored evidence. In light of the Robinson rationale it would be unreasonable for us to conclude that the Supreme Court in Robinson was addressing itself to the exclusion of evidence of prior crimes and, hence, intended Robinson to apply to procedural guarantees based upon the principle of double jeopardy. We therefore prefer to rest our decision upon the Linkletter line of cases.
. See Vaccaro v. United States, 461 F.2d 626, 633 (5th Cir. 1972): “We distill from this whole body of cases the Court’s value judgment that people . are not to be punished by procedures which present ‘a serious risk that the issue of guilt or innocence may not have been reliably determined,’ or which produce a ‘clear danger of convicting the innocent.’ Practices, procedures or statutes which present the probability of risk of such consequences must be eradicated and the surest way is to prescribe retroactivity” (footnotes omitted).
. In his closing argument, the prosecuting attorney said:
Where is your reasonable doubt about Catherine Austin identifying this man? Rosemarie Fletcher seeing his profile, the thinning hair in the back of the head, possibly her alone I would hate to convict this man on that kind of identification [sic]. I would be loathed too [sic], even in the case of the kind of testimony when you are trying a man by [sic] the heinous crime, but we are trying him because he committed a crime against the laws of the State of Florida. So that Rosemarie Fletcher, with the profile, with the thinning hair, this is very weak, but Catherine Austin, now we’ve got the law of probability working. Take that again. It gets better, much better. Pat McCune. Now we’ve got an identification that is almost nailed down. We’ve got three sensible girls standing up there and never flinching, never turning an eye. Are you going to kick that away like it was trash and rubbish, that kind of identification?
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appel1_5_3
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy in charge of regulation". Your task is to determine which specific state government agency best describes this litigant.
PUBLIC SERVICE COMMISSION FOR the STATE OF NEW YORK, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. MOBIL OIL CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. GULF OIL CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. SOHIO PETROLEUM COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The California Company, Intervenor. CONTINENTAL OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The California Company, Intervenor. BLANCO OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. HUMBLE OIL & REFINING COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Continental Oil Company et al., Intervenors. SHELL OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The California Company, Intervenor. The SUPERIOR OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The California Company, Cities Service Oil Company, Intervenors. The CALIFORNIA COMPANY, a Division of Chevron Oil Company, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. TEXACO, INC., Petitioner, v. FEDERAL POWER COMMISSION, Respondent. AMOCO PRODUCTION COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. AMERADA HESS CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. PHILLIPS PETROLEUM COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. HUNT OIL COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent.
Nos. 71-1828, 71-1836, 71-1911, 71-1913, 71-1930, 71-1970, 71-1988 to 71-1991, 71- 2015, 71-2020, 71-2025, 71-2055 and 72-1071.
United States Court of Appeals, District of Columbia Circuit.
May 26, 1972.
Messrs. John R. Rebman, Bartlesville, Okl., Martin N. Erck and Kirby Ellis were on the motion to transfer for Humble Oil & Refining Co. and others.
Messrs. Tom P. Hamill and Robert D. Haworth, Houston, Tex., Carroll L. Gilliam and Philip R. Ehrenkranz, Washington, D. C., were on the opposition to the motion to transfer for Mobil Oil Corp., in No. 71-1836.
Mr. Michael H. Rosenbloom, Washington, D. C., was on the opposition to the motion to transfer for Public Service Comm, for the State of New York, in No. 71-1828.
Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.
Chief Judge Bazelon did not participate in the consideration or disposition of these cases.
PER CURIAM:
These cases involve review of the Federal Power Commission’s opinion and Order Nos. 595 and 595-A, in its Docket Nos. AR 64-2 et al., E, Texas Gulf Coast Area Rate Proceeding. It is unquestioned that the first petition to review was filed in this court by the Public Service Commission of New York, No. 71-1828, and that this court has jurisdiction.
A motion to transfer the review proceedings to the Fifth Circuit has been filed by Humble Oil & Refining Co., and other producers, who filed petitions to review in that circuit which have been transferred to this court. They have apparently been joined by producers who have not filed a separate petition to review but have filed petitions for leave to intervene.
The theory underlying the motion is that the Commission’s opinions and orders under review in the instant proceedings “are in many material decisional respects related to its findings and conclusions” in other proceedings which either have been reviewed in the Fifth Circuit or are slated for review there, and raise “common questions of law, closely related questions of fact, and attempts to comply with the specific criteria set forth” by the Fifth Circuit in Austral, see note 1.
Movants say, inter alia, that the cases should be transferred to the Fifth Circuit “where the Judges are familiar with the myriad complex issues involved” and add that the members of the panel which decided Austral remain on the court and are presumably available for assignment to this case.
We think denial of the motion is in furtherance of the statutory scheme that appeal responsibility be determined by the filing of the first petition to review. 28 U.S.C. § 2112(a).
That statutory command is subject to certain limited exceptions, none of which is applicable here,—
(1) For a case where the first petition to review is filed by a party who is not substantially aggrieved, in effect undercutting the assumption of a good faith petition to review.
(2) For a case of virtually instantaneous filings in two or more circuits.
(8) For a case where the same or inter-related proceeding was previously under review in a court of appeals, and is now brought for review of an order entered after remand, or in a follow-on phase, where continuance of the same appellate tribunal is necessary “to maintain continuity in the total proceeding.” The need for this doctrine is underscored by the consideration that an appellate court may retain exclusive jurisdiction, by remanding the record rather than the case, and it is inappropriate that jurisdiction for unified review depend on such particularities.
This motion goes beyond these limited exceptions and implicitly invokes a theory of specialization of tribunals. That is not what Congress has provided. The contention based on specialization of particular judges is even more debatable. The Judicial Council for this cir-euit, at least, has adopted a system of selection of judges by lot that eschews any concept of specialized appellate judges, and contemplates broadening of judicial exposure in meeting common problems. It provides for retention of the same panel that handled an earlier appeal in the same case, i. e., a situation like that identified in (3), but not for reference to a panel that handled a different ease on the basis of similarity of underlying questions.
In Municipal Distributors Group, cited supra note 2, ordering transfer to the Fifth Circuit of the petition to review the FPC order in Southern Louisiana II, we noted that the Fifth Circuit had already considered Southern Louisiana I (see note 1). We need not consider whether that was, strictly, a different phase of the same or inter-related proceeding. The pleadings represented to this court that the petition to review had been time-stamped two seconds earlier in the Fifth Circuit. We declined to consider whether the principle of the exception identified in (1) might be applicable, since even if the matter were doubtful, or indeterminable, the Fifth Circuit’s earlier exposure in Southern Louisiana I reenforced review in that circuit of the later proceeding which involved, inter alia, the FPC’s authority to reconsider retrospectively certain determinations made in Southern Louisiana I.
Assignment to the Fifth Circuit may not be predicated on a conception that the case is solely one of local concern. The entire Nation is interested in natural gas rates, though for other purposes it may be convenient to refer to certain states as primarily producing areas, and others as consuming areas. Such issues, of national concern, have arisen — and may arise again — in a number of circuits, including the Third, Fifth, Ninth and Tenth, as well as our own. While uniformity of approach is important, in the last analysis it is provided under our system by the Supreme Court. An additional focus at the intermediate level on an issue of national consequence “is not necessarily an evil but may, on the contrary, serve like a stereopticon to enhance depth perception.
Motion denied,
. See Southern Louisiana Area Rate Proceeding, FPC Docket AR 61-2, reviewed in Southern Louisiana Area Rate Cases, Austral Oil Co. et al. v. FPC, 428 F.2d 407 (5th Cir. 1970), cert. denied sub nom. Municipal Distributor Group v. FPC, 400 U.S. 950, 91 S.Ct. 241, 27 L.Ed. 2d 241 (1970). Southern Louisiana II, FPC, Docket AR 69-1, under review in Placid Oil Co. et al. v. FPC, No. 71-2761, 5th Cir., filed Sept. 9, 1971. Other Southwest Area, FPC opinion and order No. 607 and 607-A, review pending, Shell Oil Co. v. FPC, No. 72-1114, 5th Cir., filed Jan. 17, 1972.
. See Municipal Distributors Group v. FPC, 148 U.S.App.D.C. 343, 459 F.2d 1367 (1972) : “This court has recognized that sound doctrine resists ‘forum shopping’ in a ease of mere technical aggrievement, see [Insurance Workers] International Union et al. v. NLRB, 126 U.S. App.D.C. 11, 373 F.2d 671 (1967).” 459 F.2d at 1369.
In International Union, United Auto etc. Workers v. NLRB [Preston Products Co. Inc.] 126 U.S.App.D.C. 12, 373 F.2d 671 (1967), the court reconsidered an order transferring cases to the Sixth Circuit, noted that the Union had not received all the relief requested at the Board stage, and stated: “We think 28 U.S.C. § 2112(a) requires respect for the forum where the Union fiied its petition for review, since that was the first petition for review filed, and we cannot say either that the Union’s claim is frivolous or that it is not genuinely aggrieved.” It limited transfer for lack of genuine aggrievement to the case where the party filing the first petition “has received substantially all the relief contemplated, * * * the special case where the ‘inconsequential’ character of the deficiency in findings or relief is established by the petitioner’s own stipulation, as in Insurance Workers, supra, or other pleading or representation.” 126 U.S.App.D.C. at 13-14, 373 F.2d at 673.
. Int’l Union of Electrical, R. & M. Workers v. NLRB, 120 U.S.App.D.C. 45, 343 F.2d 327 (1965) (Board unable to determine whether employer filed first petition to review, in the Seventh Circuit where it does business, or Union filed first petition in the District of Columbia Circuit. Board proposed to file petition for enforcement in the Second Circuit, as place where unfair labor practice occurred. Mandamus denied.)
. See Pacific Gas & Elec. Co. v. FPC, 106 U.S.App.D.C. 281, 282, 272 F.2d 510, 511 (1958) ; Eastern Air Lines v. CAB, 122 U.S.App.D.C. 375, 378, 354 F.2d 507, 510 (1965). As to Eastern’s use of “same or interrelated” proceeding, the “interrelated” term refers to an organic relation, in what may fairly be called a single “total proceeding” and not merely similarity of legal issues.
. NLRB v. Wilder Manufacturing Co., 147 U.S.App.D.C. 152, 454 F.2d 995 (1971) ; Greater Boston TV Corp. v. FCC, 118 U.S.App.D.C. 162, 334 F.2d 552 (1964).
. Brotherhood of Railroad Trainmen v. Akron B. & B.R. Co., 128 U.S.App.D.C. 59, 83, n. 53, 385 F.2d 581, 605, n. 53 (1967) cert. denied, 390 U.S. 923, 88 S.Ct. 851, 19 L.Ed.2d 983 (1968).
. Dellinger v. Mitchell, 143 U.S.App.D.C. 60, 66, 442 F.2d 782, 788 (1971).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy in charge of regulation". Which specific state government agency best describes this litigant?
A. Environment
B. Market Practices
C. Transportation
D. Professions (licensing)
E. Labor-Management
F. Communications
G. Zoning/Land Use
H. Building and Housing
I. Other Regulating Activity
J. not ascertained
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
UNITED STATES v. WILLIAMS.
No. 149.
Circuit Court of Appeals, Second Circuit.
Jan. 4, 1945.
John F. X. McGohey, U. S. Atty., of New York City (Harold J. McAúley, Asst. U. S. Atty., of New York City, of counsel), for plaintiff-appellee.
John A. Bolles, of New York City, for defendant-appellant.
Before CHASE, CLARK, and FRANK, Circuit Judges.
PER CURIAM.
The appellant was tried by jury in the District Court for the Southern District of Ne'w York on an indictment charging the use of the mail to defraud in violation of 18 U.S.C.A. § 338. After conviction and sentence he has appealed and seeks a reversal on the ground of error committed by the court when, just before the case was submitted, the jury was told in response to the request of the district attorney that “Of course, ignorance of the law is never any excuse. Good faith does not excuse.” After that the court asked counsel if there were any exceptions and none were taken.
The defense of the appellant had been largely put upon his honest and reasonable belief that the representations he made were true,- and standing alone this terse statement as to good faith did not adequately and correctly inform the jury as to the law applicable to the issues on trial. Gold v. United States, 8 Cir., 36 F.2d 16. But, even so, there is no reason to believe that the jury was confused. In the colloquial charge the jury had been correctly and sufficiently instructed as to the law on the subject, and had there been any reason to believe that what is now urged to be erroneous was likely to be misunderstood the judge should have' been given a chance to amplify or correct what he said by having his attention called to that at the time. United States v. Manton, 2 Cir., 107 F.2d 834, 848. We will exercise our discretion to notice only plain error where no exception has been taken. The brief remarks of the judge are to be considered in connection with his previous clear exposition of the subject, and when that is done it cannot be ’ reasonably thought that the appellant was harmed in any respect.
Judgment affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
sc_caseoriginstate
|
42
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
HUGHES v. OKLAHOMA
No. 77-1439.
Argued January 9, 1979
Decided April 24, 1979
Brennaet, J., delivered the opinion of the Court, in which StewaRT, White, Marshall, BlackmuN, Powell, and SteveNS, JJ., joined. Behnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 339.
Robert M. Helton argued the cause and filed a brief for appellant.
Bill J. Bruce argued the cause for appellee. With him on the brief was Larry Derryberry, Attorney General of Oklahoma.
Mr. Justice Brennan
delivered the opinion of the Court.
The question presented for decision is whether Okla. Stat., Tit. 29, § 4-115 (B) (Supp. 1978), violates the Commerce Clause, Art. I, § 8, cl. 3, of the United States Constitution, insofar as it provides that “ [n] o person may transport or ship minnows for sale outside the state which were seined or procured within the waters of this state ...”
Appellant William Hughes holds a Texas license to operate a commercial minnow business near Wichita Falls, Tex. An Oklahoma game ranger arrested him on a charge of violating § 4-115 (B) by transporting from Oklahoma to Wichita Falls a load of natural minnows purchased from a minnow dealer licensed to do business in Oklahoma. Hughes’ defense that § A-115 (B) was unconstitutional because it was repugnant to the Commerce Clause was rejected, and he was convicted and fined. The Oklahoma Court of Criminal Appeals affirmed, stating:
“The United States Supreme Court has held on numerous occasions that the wild animals and fish within a state’s border are, so far as capable of ownership, owned by the state in its sovereign capacity for the common benefit of all its people. Because of such ownership, and in the exercise of its police power, the state may regulate and control the taking, subsequent use and property rights that may be acquired therein. Lacoste v. Department of Conservation, 263 U. S. 545 . . . ; Geer v. State of Connecticut, 161 U. S. 519 .... As stated in Lacoste, supra, protection of the wildlife of a state is peculiarly within the police power of the state, and the state has great latitude in determining what means are appropriate for its protection.
. . Oklahoma law does not prohibit commercial minnow hatcheries within her borders from selling stock minnows to anyone, resident or nonresident, and minnows purchased therefrom may be freely exported. However, the law served to protect against the depletion of minnows in Oklahoma’s natural streams through commercial exportation. No person is allowed to export natural minnows for sale outside of Oklahoma. Such a prohibition is not repugnant to the commerce clause . . . .” 572 P. 2d 573, 575 (1977).
We noted probable jurisdiction, 439 U. S. 815 (1978). We reverse. Geer v. Connecticut, 161 U. S. 519 (1896), on which the Court of Criminal Appeals relied, is overruled. In that circumstance, § 4-115 (B) cannot survive appellant’s Commerce Clause attack.
I
The few simple words of the Commerce Clause — “The Congress shall have Power ... To regulate Commerce . . . among the several States . . .” — reflected a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation. See H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 533-534 (1949). The Commerce Clause has accordingly been interpreted by this Court not only as an authorization for congressional action, but also, even in the absence of a conflicting federal statute, as a restriction on permissible state regulation. The cases defining the scope of permissible state regulation in areas of congressional silence reflect an often controversial evolution of rules to accommodate federal and state interests. Geer v. Connecticut was decided relatively early in that evolutionary process. We hold that time has revealed the error of the early resolution reached in that case, and accordingly Geer is today overruled.
A
Geer sustained against a Commerce Clause challenge a statute forbidding the transportation beyond the State of game birds that had been lawfully killed within the State. The decision rested on the holding that no interstate commerce was involved. This conclusion followed in turn from the view that the State had the power, as representative for its citizens, who “owned” in common all wild animals within the State, to control not only the taking of game but also the ownership of game that had been lawfully reduced to possession. By virtue of this power, Connecticut could qualify the ownership of wild game taken within the State by, for example, prohibiting its removal from the State: “The common ownership imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose.” 161 U. S., at 530. Accordingly, the State's power to qualify ownership raised serious doubts whether the sale or exchange of wild game constituted “commerce” at all; in any event the Court held that the qualification imposed by the challenged statute removed any transactions involving wild game killed in Connecticut from interstate commerce.
Mr. Justice Field and the first Mr. Justice Harlan dissented, rejecting as artificial and formalistic the Court’s analysis of “ownership” and “commerce” in wild game. They would have affirmed the State’s power to provide for the protection of wild game, but only “so far as such protection . . . does not contravene the power of Congress in the regulation of interstate commerce.” Their view was that “[w]hen any animal ... is lawfully killed for the purposes of food or other uses of man, it becomes an article of commerce, and its use cannot be limited to the citizens of one State to the exclusion of citizens of another State.”
B
The view of the Geer dissenters increasingly prevailed in subsequent cases. Indeed, not only has the Geer analysis been rejected when natural resources other than wild game were involved, but even state regulations of wild game have been held subject to the strictures of the Commerce Clause under the pretext of distinctions from Geer.
The erosion of Geer began only 15 years after it was decided. A Commerce Clause challenge was addressed to an Oklahoma statute designed to prohibit the transportation beyond the State of natural gas produced by wells within the State. West v. Kansas Natural Gas Co., 221 U. S. 229 (1911). Based on reasoning parallel to that in Geer, Oklahoma urged its right to “conserve” the gas for the use of its own citizens, stressing the limited supply and the absence of alternative sources of fuel within the State. Nevertheless, the Court, in a passage reminiscent of the dissents in Geer, condemned the obvious protectionist motive in the Oklahoma statute and rejected the State’s arguments with a powerful reaffirmation of the vision of the Framers:
“The statute of Oklahoma recognizes [gas] to be a subject of intrastate commerce, but seeks to prohibit it from being the subject of interstate commerce, and this is the purpose of its conservation. ... If the States have such power a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the mining States their minerals. And why may not the products of the field be brought within the principle? Thus enlarged, or without that enlargement, its influence on interstate commerce need not be pointed out. To what consequences does such power tend? If one State has it, all States have it; embargo may be retaliated by embargo, and commerce will be halted at state lines. And yet we have said that 'in matters of foreign and interstate commerce there are no state lines.’ In such commerce, instead of the States, a new power appears and a new welfare, a welfare which transcends that of any State. But rather let us say it is constituted of the welfare of all of the States and that of each State is made the greater by a division of its resources, natural and created, with every other State, and those of every other State with it. This was the purpose, as it is the result, of the interstate commerce clause of the Constitution of the United States. If there is to be a turning backward it must be done by the authority of another instrumentality than a court.” 221 U. S., at 255-256.
The Court distinguished discriminatory or prohibatory regulations offensive to the Commerce Clause, such as the Oklahoma statute, from a valid "exercise of the police power to regulate the taking of natural gas” that was "universal in its application and justified by the nature of the gas and which allowed its transportation to other states.” Id., at 257; see id., at 252-254 (distinguishing Ohio Oil Co. v. Indiana, 177 U. S. 190 (1900)).
In subsequent Commerce Clause challenges to state regulation of exports of natural resources, the West analysis emerged as the dominant approach. See, e. g., Pennsylvania v. West Virginia, 262 U. S. 553, 598-600 (1923); H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525 (1949). Today’s principle is that stated in Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970):
“Where the 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. ... 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.” (Citations omitted.)
This formulation was employed only last Term to strike down New Jersey’s attempt to “conserve” the natural resource of landfill areas within the State for the disposal of waste generated within the State. Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978).
The Geer analysis has also been eroded to the point of virtual extinction in cases involving regulation of wild animals. The first challenge to Geer’s, theory of a State’s power over wild animals came in Missouri v. Holland, 252 U. S. 416 (1920). The State of Missouri, relying on the theory of state ownership of wild animals, attacked the Migratory Bird Treaty Act on the ground that it interfered with the State’s control over wild animals within its boundaries. Writing for the Court, Mr. Justice Holmes upheld the Act as a proper exercise of the treatymaking power. He commented in passing on the artificiality of the Geer rationale: “To put the claim of the State upon title is to lean upon a slender reed.” 252 U. S., at 434.
Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928), undermined Geer even more directly. A Louisiana statute forbade the transportation beyond the State of shrimp taken in Louisiana waters until the heads and shells had been removed. The statute clearly relied on the Geer state-control-of-ownership rationale. Anyone lawfully taking shrimp from Louisiana waters was granted “a qualified interest which may be sold within the State.” Only after the head and shell had been removed within the State did the taker or possessor acquire “title and the right to sell and ship the same ‘beyond the limit[s] of the State, without restriction or reservation.’ ” 278 U. S., at 8.
Ignoring the niceties of “title” to the shrimp and concentrating instead on the purposes and effects of the statute, Foster-Fountain Packing struck down the statute as economic protectionism abhorrent to the Commerce Clause. The analysis resembled that employed in the natural gas cases, which were cited with approval, id., at 10-11, 13. Geer was distinguished on the ground that there “[n]o part of the game was permitted by the statute to become an article of interstate commerce.” 278 U. S., at 12. Limiting Geer to cases involving complete embargoes on interstate commerce in a wild animal created the anomalous result that the most burdensome laws enjoyed the most protection from Commerce Clause attack.
Foster-Fountain Packing’s implicit shift away from Geer’s formalistic “ownership” analysis became explicit in Toomer v. Witsell, 334 U. S. 385, 402 (1948), which struck down as violations of the Commerce Clause and the Privileges and Immunities Clause certain South Carolina laws discriminating against out-of-state commercial fishermen:
“The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource. And there is no necessary conflict between that vital policy consideration and the constitutional command that the State exercise that power, like its other powers, so as not to discriminate without reason against citizens of other States.”
Although stated in reference to the Privileges and Immunities Clause challenge, this reasoning is equally applicable to the Commerce Clause challenge. Douglas v. Seacoast Products, Inc., 431 U. S. 265 (1977), dispelled any doubts on that score. In rejecting the argument that Virginia’s “ownership” of fish swimming in its territorial waters empowered the State to forbid fishing by federally licensed ships owned by nonresidents while permitting residents to fish, Seacoast Products explicitly embraced the analysis of the Geer dissenters:
“A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of 'owning’ wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture.... Geer v. Connecticut, 161 U. S. 519, 539-540 (1896) (Field, J., dissenting). The 'ownership’ language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing 'the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.’ [Citing Toomer.] Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution.” 431 U. S., at 284.
C
The case before us is the first in modern times to present facts essentially on all fours with Geer. We now conclude that challenges under the Commerce Clause to state regulations of wild animals should be considered according to the same general rule applied to state regulations of other natural resources, and therefore expressly overrule Geer. We thus bring our analytical framework into conformity with practical realities. Overruling Geer also eliminates the anomaly, created by the decisions distinguishing Geer, that statutes imposing the most extreme burdens on interstate commerce (essentially total embargoes) were the most immune from challenge. At the same time, the general rule we adopt in this case makes ample allowance for preserving, in ways not inconsistent with the Commerce Clause, the legitimate state concerns for conservation and protection of wild animals underlying the 19th-century legal fiction of state ownership.
II
We turn then to the question whether the burden imposed on interstate commerce in wild game by § 4-115 (B) is permissible under the general rule articulated in our precedents governing other types of commerce. See, e. g., Pike v. Bruce Church, Inc., 397 U. S., at 142, quoted, supra, at 331. Under that general rule, we must inquire (1) whether the challenged statute regulates evenhandedly with only “incidental” effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and, if so, (3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce. The burden to show discrimination rests on the party challenging the validity of the statute, but “[w]hen discrimination against commerce ... is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve, the local interests at stake.” Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 353 (1977). Furthermore, when considering the purpose of a challenged statute, this Court is not bound by “[t]he name, description or characterization given it by the legislature or the courts of the State,” but will determine for itself the practical impact of the law. Lacoste v. Louisiana Dept. of Conservation, 263 U. S. 545, 550 (1924); see Foster-Fountain Packing Co. v. Haydel, 278 U. S., at 10; Pike v. Bruce Church, Inc., supra.
Section 4-115 (B.) on its face discriminates against interstate commerce. It forbids the transportation of natural minnows out of the State for purposes of sale, and thus “overtly blocks the flow of interstate commerce at [the] State’s borders.” Philadelphia v. New Jersey, 437 U. S., at 624. Such facial discrimination by itself may be a fatal defect, regardless of the State’s purpose, because “the evil of protectionism can reside in legislative means as well as legislative ends.” Id., at 626. At a minimum such facial discrimination invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives.
Oklahoma argues that § A-115 (B) serves a legitimate local purpose in that it is “readily apparent as a conservation measure.” Brief for Appellee 8. The State’s interest in maintaining the ecological balance in state waters by avoiding the removal of inordinate numbers of minnows may well qualify as a legitimate local purpose. We consider the States’ interests in conservation and protection of wild animals as legitimate local purposes similar to the States’ interests in protecting the health and safety of their citizens. See, e. g., Firemen v. Chicago, R. I. & P. R. Co., 393 U. S. 129 (1968). But the scope of legitimate state interests in “conservation” is narrower under this analysis than it was under Geer. A State may no longer “keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose.” Geer v. Connecticut, 161 U. S., at 530. The fiction of state ownership may no longer be used to force those outside the State to bear the full costs of “conserving” the wild animals within its borders when-equally effective nondiscriminatory conservation measures are available.
Far from choosing the least discriminatory alternative, Oklahoma has chosen to “conserve” its minnows in the way that most overtly discriminates against interstate commerce. The State places no limits on the numbers of minnows that can be taken by licensed minnow dealers; nor does it limit in any way how these minnows may be disposed of within the State. Yet it forbids the transportation of any commercially significant number of natural minnows out of the State for sale. Section 4-115 (B) is certainly not a “last ditch” attempt at conservation after nondiscriminatory alternatives have proved unfeasible. It is rather a choice of the most discriminatory means even though nondiscriminatory alternatives would seem likely to fulfill the State’s purported legitimate local purpose more effectively.
We therefore hold that § 4-115 (B) is repugnant to the Commerce Clause.
Ill
The overruling of Geer does not leave the States powerless to protect and conserve wild animal life within their borders. Today’s decision makes clear, however, that States may promote this legitimate purpose only in ways consistent with the basic principle that “our economic unit is the Nation,” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 537, and that when a wild animal “becomes an article of commerce . . . its use cannot be limited to the citizens of one State to the exclusion of citizens of another State.” Geer v. Connecticut, supra, at 538 (Field, J., dissenting).
Reversed.
Section 4-115 provides in full:
“A. No person may ship or transport minnows for sale into this state from an outside source without having first procured a license for such from the Director.
“B. No person may transport or ship minnows for sale outside the state which were seined or procured within the waters of this state except that:
“1. Nothing contained herein shall prohibit any person from leaving the state possessing three (3) dozen or less minnows;
“2. Nothing contained herein shall prohibit sale and shipment of minnows raised in a regularly licensed commercial minnow hatchery.
“C. The fee for a license under this section shall be:
"1. For residents, One Hundred Dollars ($100.00);
“2. For nonresidents, Three Hundred Dollars ($300.00).
“D. Any person convicted of violating any provisions of this section shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than Two Hundred Dollars ($200.00).”
The prohibition against transportation out of State for sale thus does not apply to hatchery-bred minnows, but only to “natural” minnows seined or procured from waters within the State.
Section 4r-115 (B) is part of the Oklahoma Wildlife Conservation Code. Another provision of that Code requires that persons have a minnow dealer’s license before they can lawfully seine or trap minnows within the State — except for their own use as bait — §4^11(5 (Supp. 1978), but no limit is imposed on the number of minnows a licensed dealer may take from state waters. Nor is there any regulation except § 4r-115 (B) concerning the disposition of lawfully acquired minnows; they may be sold within Oklahoma to any person and for any purpose, and may be taken out of the State for any purpose except sale.
“The Commerce Clause is one of the most prolific sources of national power and an equally prolific source of conflict with legislation of the state. While the Constitution vests in Congress the power to regulate commerce among the states, it does not say what the states may or may not do in the absence of congressional action, nor how to draw the line between what is and what is not commerce among the states. Perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this Nation by the meaning it has given to these great silences of the Constitution.” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 534-535.
Philadelphia v. New Jersey, 437 U. S. 617, 621-623 (1978), made clear that there is no “two-tiered definition of commerce.” The definition of “commerce” is the same when relied on to strike down or restrict state legislation as when relied on to support some exertion of federal control or regulation.
See, e. g., Gibbons v. Ogden, 9 Wheat. 1, 209 (1824); Willson v. Black Bird Creek Marsh Co., 2 Pet. 245 (1829); Cooley v. Board of Wardens, 12 How. 299 (1852); Port Richmond & Bergen Point Perry Co. v. Board of Chosen Freeholders, 234 U. S. 317 (1914); Di Santo v. Pennsylvania, 273 U. S. 34 (1927); Parker v. Brown, 317 U. S. 341 (1943); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761 (1945); H. P. Hood & Sons, Inc. v. Du Mond, supra; Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). See generally, F. Frankfurter, The Commerce Clause Under Marshall, Taney and Waite (1937); Dowling, Interstate Commerce and State Power, 27 Va. L. Rev. 1 (1940); Dowling, Interstate Commerce and State Power — Revised Version, 47 Colum. L. Rev. 547 (1947).
“[T] he sole issue which the case presents is, was it lawful under the Constitution of the United States (section 8, Article I) for the State of Connecticut to allow the killing of birds within the State during a designated open season, to allow such birds, when so killed, to be used, to be sold and to be bought for use within the State, and yet to forbid their transportation beyond the State? Or, to state it otherwise, had the State of Connecticut the power to regulate the killing of game within her borders so as to confine its use to the limits of the State and forbid its transmission outside of the State?” 161 U. S., at 522.
Id., at 522-529. The Court has recognized that Geer’s analysis of the authorities on this issue is open to question. Toomer v. Witsell, 334 U. S. 385, 402 n. 37 (1948).
“The qualification which forbids [the game’s] removal from the State necessarily entered into and formed part of every transaction on the subject, and deprived the mere sale or exchange of these articles of that element of freedom of contract and of full ownership which is an essential attribute of commerce. Passing, however, as we do, the decision of this question, and granting that the dealing in game killed within the State, under the provision in question, created internal State commerce, it does not follow that such internal commerce became necessarily the subject-matter of interstate commerce, and therefore under the control of the Constitution of the United States.
"... The power of the State to control the killing of and ownership in game being admitted, the commerce in game, which the state law permitted, was necessarily only internal commerce, since the restriction that it should not become the subject of external commerce went along with the grant and was a part of it.” 161 U. S., at 530-532.
Our Brother Rehnquist suggests that the Court in Geer offered as an “alternative basis for its decision” (in the final paragraph of its 15-page opinion) that the “State, in the exercise of its police power, could act to preserve for its people a valuable food supply, even though interstate commerce was remotely and indirectly affected.” Post, at 340 n. 3. That this was not an “alternative basis,” however, is made clear in a sentence not quoted by our Brother Rehnquist:
“The power of a State to protect by adequate police regulation its people against the adulteration of articles of food, . . . although in doing so commerce might be remotely affected, necessarily carries with it the existence of a like power to preserve a food supply which belongs in common to all the people of the State, which can only become the subject of ownership in a qualified way, and which can never be the object of commerce except with the consent of the State and subject to the conditions which it may deem best to impose for the public good.” 161 U. S., at 535 (emphasis added).
Thus, rather than an “alternative basis” independent of the “state ownership” and “no interstate commerce” rationales, this “preservation of a valuable resource” rationale was premised on those rationales. In any event, even if an “alternative basis,” this rationale has met the same fate as Geer’s primary rationale. See infra, at 329-331, and n. 9.
161 U. S., at 541 (Field, J., dissenting); see id., at 543 (Harlan, J., dissenting).
Id., at 538, 541-542 (Field, J., dissenting); see id., at 543-544 (Harlan, J., dissenting).
The inconsistency between the result in this case and that in Geer was not overlooked by the dissenting Justices. See Pennsylvania v. West Virginia, 262 U. S., at 601 (Holmes, J., dissenting). Significantly, our Brother BjehNquist relies on this dissent in his discussion of the “alternative basis” of Geer — the “preservation of a valuable natural resource” rationale. See n. 6, supra; post, at 340-341, n. 3. The Court opinion in Pennsylvania v. West Virginia, like that in West, expressly rejected this argument along with the “no interstate commerce” rationale. 262 U. S., at 599-600.
The law challenged in Foster-Fountain Packing Co. was passed in July 1926. The state legislature may have been encouraged to take such action by certain language in Lacoste v. Louisiana Dept. of Conservation, 263 U. S. 545 (1924), language also relied on by the Oklahoma Court of Criminal Appeals in this case. Lacoste upheld a Louisiana “severance” tax on the skins of all wild furbearing animals and alligators taken in the State. The Court cited Geer for the proposition that:
“The wild animals within its borders are, so far as capable of ownership, owned by the State in its sovereign capacity for the common benefit of all of its people. Because of such ownership, and in the exercise of its police power the State may regulate and control the taking, subsequent use and property rights that may be acquired therein.” 263 U. S., at 549.
Nevertheless, Lacoste expressly declined to uphold the tax “by virtue of the power of the State to prohibit, and therefore to condition, the removal of wild game from the State.” Ibid. Rather than reach this issue, the Court upheld the measure as a valid police regulation designed to conserve and protect wild animals, noting that the tax applied to all skins taken within the State, whether kept within the State or shipped out. Id., at 550-551. Thus, despite its citation of Geer, Lacoste is actually more compatible with the cases following the views of the Justices dissenting in Geer.
The preamble to the Act read in part as follows: “To declare all shrimp and parts thereof in the waters of the State to be the property of the State of Louisiana, and to provide the manner and extent of their reduction to private ownership Foster-Fountain Packing Co. v. Haydel, 278 U. S., at 5 n.
The Court cited these cases for the proposition that “[a] State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State.” Id., at 10.
“As the representative of its people, the State might have retained the shrimp for consumption and use therein. . . . But by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the State necessarily releases its hold and, as to the shrimp so taken, definitely terminates its control. Clearly such authorization and the taking in pursuance thereof put an end to the trust upon which the State is deemed to own or control the shrimp for the benefit of its people. And those taking the shrimp under the authority of the Act necessarily thereby become entitled to the rights of private ownership and the protection of the commerce clause.” Id., at 13.
See Hicklin v. Orbeck, 437 U. S. 518, 531-532 (1978). The Court distinguished Geer on the same basis used in Foster-Fountain Packing Co., 334 U. S., at 404-406. Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 420-421 (1948), decided the same day as Toomer, reviewed the cases distinguishing and questioning Geer and found the State's claim to “ownership” inadequate to justify a ban on commercial fishing by alien residents.
“In more recent years . . . the Court has recognized that the States’ interest in regulating and controlling those things they claim to 'own,’ including wildlife, is by no means absolute. States may not compel the confinement of the benefits of their resources, even .their wildlife, to their own people whenever such hoarding and confinement impedes interstate commerce. Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928) ; Pennsylvania v. West Virginia, 262 U. S. 553 (1923); West v. Kansas Natural Gas Co., 221 U. S. 229 (1911).” Baldwin v. Montana Fish & Game Comm’n, 436 U. S. 371, 385-386 (1978).
See, e. g., Douglas v. Seacoast Products, Inc., 431 U. S. 265, 285 n. 21 (1977).
“ [W] hatever [a State’s] ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently.” Philadelphia v. New Jersey, 437 U. S., at 626-627.
See n. 1, supra.
Section 4-115 (B) does not apply to persons transporting three dozen or less natural minnows outside the State. See n. 1, supra.
In its brief, Oklahoma argues, apparently for the first time, that the discrimination against out-of-state sales of natural minnows is justified because minnows purchased in the State are more likely to be used for bait in state waters. Brief for Appellee 3. The State contends that minnows “returned” to state waters as bait do not upset the ecological balance as much as those that never “return.” The late appearance of this argument and the total absence of any record support for the questionable factual assumptions that underlie it give it the flavor of a post hoc rationalization. The State’s bare assertion is certainly inadequate to survive the scrutiny invoked by the facial discrimination of § 4r-115 (B). In any case, Oklahoma itself concedes that the “return” of natural minnows as bait is irrelevant to most aspects of preserving ecological balance. Brief for Appellee 4.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_circuit
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
THE COMET NO. 5. COMET LIGHTERAGE COMPANY v. THE Steam Tug WILLIAM F. MESECK, Meseck Towing & Transportation Company, Claimant-Appellant, and the Steam Tug NEW YORK CENTRAL NO. 27, the New York Central Railroad Company, Claimant-Impleaded-Appellee.
No. 353.
Circuit Court of Appeals, Second Circuit.
May 19, 1930.
Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for Meseck Towing & Transportation Co., claimant.
Alexander, Ash & Jones, of New York City (Edward Asb and Max Taylor, both of New York City, of counsel), for libelant-appellee.
Bigham, Englar, Jones & Houston, of New York City (Charles W. Hagen, of New York City, of counsel), for appellee.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
Decree affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_circuit
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E
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
TRADERS’ TRUST CO. v. WAYNE. In re GEORGE R. JONES & CO., Inc.
(Circuit Court of Appeals, Fifth Circuit.
May 6, 1926.)
No. 4732.
Mortgages <S=»114 — Trust deed held Intended to secure indebtedness only to amount of $5,000.
Corporation’s trust deed, executed pursuant to resolution of board of directors, authorizing officers to establish a line of credit in the sum of $5,000, and to execute notes and renewal notes not to exceed that sum, held intended only to secure an indebtedness not to exceed $5,000, and creditor is not entitled to preferred claim in excess of that amount.
Appeal from the District Court of the United States for the Northern District of Georgia; Samuel H. Sibley, Judge.
In the matter of the bankruptcy of Geo. R. Jones & Co., Inc. From a judgment sustaining the objection of Clarence Wayne, trustee, to the secured claim of the Traders’ Trust Company in excess of $5,000, said Traders’ Trust Company appeals.
Affirmed.
Walter McElreath and Thomas Howell Scott, both of Atlanta, Ga., for appellant.
Leonard Haas, of Atlanta, Ga. (Underwood & Haas, of Atlanta, Ga., on the brief), for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
FOSTER, Circuit Judge.
This is an ap-' peal from a judgment disallowing in part a claim of appellant as a secured debt against the estate of George R. Jones & Co., Inc., bankrupt. It appears that in May, 3923, the George R. Jones Company was indebted to the Decatur Bank & Trust Company in the sum of $5,000, represented by a note, and executed a deed of trust covering certain land to secure it. The material part of the deed is as follows:
“This deed is made to secure the payment of a debt, pursuant to the laws of Georgia in such ease made and provided, or any renewal of said debt, or any part thereof, which debt is evidenced by a certain promissory note bearing even date herewith for the sum of five thousand ($5,000.00) dollars, signed by Geo. R. Jones Company, Ine., bearing interest from date at the rate of eight (8%) per cent, per annum, and providing for the payment of ten (10) per cent, as attorney’s fees. This deed is intended, not only to secure the above-described note, but any other indebtedness that may be now or hereafter owing by the said Geo. R. Jones Company, Ine., to said bank, or any renewal of such indebtedness; the purpose and object of this deed being to secure a line of credit by said Geo. R. Jones Company, Inc., from said bank, so long as the same may be mutually agreeable to the parties hereto. This deed is executed pursuant to the following resolution passed by the directors of said Geo. R. Jones Company, Inc., to wit:
“ ‘Resolution.
“ ‘Resolved, That the officers of this corporation, to wit, George R. Jones Company, Ine., be and they are hereby authorized to arrange with the Decatur Bank & Trust Company for a line of credit from said bank to this corporation in the sum of five thousand dollars ($5,000.00), and to execute from time to time such notes as may be necessary to secure such hank for said sum or any part thereof, and to renew any such note or notes, and from time to time to sign new notes for additional sums advanced by said bank for this corporation, not exceeding at any time five thousand dollars ($5,000.00), ^nd said officers are also authorized to convey to said bank as security for any note or notes that may be executed by this corporation pursuant to this resolution, the following described land, to wit.’ ”
The George R. Jones .Company was adjudicated bankrupt in September, 1925. Prior to that time the Decatur .Bank & Trust Company had transferred certain > notes charged to the bankrupt, amounting to over $15,000, and its rights under the trust deed, to appellant, and that company filed a proof of debt as a secured claim to the amount of $14,772.48. The trastee objected to the allowance of the claim as secured in any amount exceeding $5,000, and the referee entered an order maintaining the contention of the trustee, which \ order was in turn approved, by the District Court. Appellant now contends that the-deed was intended to secure any indebtedness up to $10,000.
The only question presented for review is the construction of the deed of trust by the court below. We agree with the referee and the District Court in their construction of the deed of trust. Considering the provisions above quoted, including the resolution óf the company, it seems clear that it was the intention of the grantor to secure a line of credit at all times of $5,000, but not to secure any indebtedness exceeding that amount. The testimony of Jones, president, and Andrews, treasurer,. of the bankrupt, sustains this construction. In this connection it may be noted that the proof of debt filed by appellants shows only one note of $5,000 made by the Jones Company to the Decatur Bank & Trust Company. The other notes going to make up the amount claimed are either notes to the Jones Company, indorsed and discounted by it with the bank, or notes of the Jones Company to third persons, indorsed and discounted by them. It would be stretching the provisions of the deed of trust too far to say that it was the intention of the parties, when it was executed, that notes such as these were intended to be secured by it.
Affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_casetyp2_geniss
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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.
There are two main issues in this case. The first issue is labor relations - union organizing. 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".
COPPUS ENGINEERING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 5138.
United States Court of Appeals First Circuit.
Heard Nov. 7, 1956.
Decided Jan. 16, 1957.
Ernest L. Anderson, Worcester, Mass., with whom Lloyd Anderson and Anderson, Anderson & Howard, Worcester, Mass., were on the brief, for petitioner.
Fannie M. Boyls, Atty., N. L. R. B., Washington, D. C., with whom Theophil C. Kammholz, Gen. Counsel, Marcel Mallet-Frevost, Asst. Gen. Counsel, and Margaret M. Farmer, Atty., N. L. R. B., Washington, D. C., were on the brief, for respondent.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, ■Circuit Judges.
HARTIGAN, Circuit Judge.
The petitioner, Coppus Engineering Corporation, pursuant to § 10(f) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., hereafter called the Act, seeks review of an order of the National Labor Relations Board, and the Board has filed an answer to this petition and also a cross petition, under § 10(e), requesting enforcement of its order.
The Board ordered the petitioner to cease and desist from: assisting, dominating, contributing financial or other support to, or interfering with the administration of, the Shop Committee, or any other labor organization; otherwise interfering with the representation of its employees through a labor organization of their own choosing; recognizing the Shop Committee, or any successor thereto, as the representative of any of its employees for the purpose of dealing with the petitioner concerning terms or conditions of employment. Affirmatively, the order required petitioner to withdraw and withhold all recognition from, and completely disestablish, the Shop Committee, or any successor thereto, as the representative of any of its employees for the purpose of dealing with the petitioner concerning terms or conditions of employment. The Board in its decision and order adopted the findings, conclusions and recommendations of the trial examiner.
The conclusions of the trial examiner, so adopted, were that: (1) the Shop Committee was a labor organization within the meaning of § 2(5) of the Act; (2) the petitioner had engaged in unfair -labor practices within the meaning of § 8(a) (2) by assisting, supporting, dominating and interfering with the administration of the Shop Committee; (3) by such conduct the petitioner had interfered with, restrained and coerced its employees in the exercise of rights guaranteed in § 7 and thereby had engaged in unfair labor practices within the meaning of § 8(a) (1); (4) that these unfair labor practices affected commerce within the meaning of § 2(6) and (7).
Since petitioner contests only conclusions (2) and (3) above, we need discuss only the facts pertinent to them. These facts as drawn chiefly from the findings of the trial examiner, and in the light most favorable to the Board, are as follows:
The petitioner, a Massachusetts corporation, is engaged at Worcester, Massachusetts, in the manufacture, sale and distribution of steam turbines, blowers, air filters and related products. It employs approximately eighty in its production and maintenance group.
On September 11, 1952, the United Steelworkers of America, C.I.O., filed with the Board a petition for certification as collective bargaining representative of the petitioner’s production and maintenance employees. As the petitioner did not agree to recognize the Union as such representative, an election was held October 7, 1952 in which the Union failed to receive a majority.
Shortly thereafter, the petitioner’s president, Jerome George, called a meeting of the production and maintenance employees at the plant. George made a short speech and suggested to the employees “that they have a permanent grievance committee, if that is what they wanted to call it, to handle grievances” with management. George then left the meeting and the employees nominated candidates to form a Shop Committee from among their number. A ballot was then drawn up and some days later an election was held at the plant. The five employees who received the largest number of votes constituted the original Shop Committee, hereinafter called the Committee, with the employee receiving the largest vote serving as chairman.
Since its establishment the Committee entered into discussions' with management concerning not only individual employee grievances, but also wages, hours, pensions, holidays and other working conditions.
In February 1954 the petitioner published at its own expense and distributed to all employees an eleven page booklet, with the cover containing the title, “Plant Rules and Policies,” and the petitioner’s name at the bottom. This booklet set forth the petitioner’s rules and policies under six topic headings. The petitioner’s name and address appeared again on the bottom of the last page. The first page contained the general heading “Plant Rules and Policies.” Directly under that was listed the first topic heading, “The Shop Committee.” The contents of this topic were the rules of the Committee.
These rules were drafted by the Committee and approved by the employees at a meeting held at the plant. A witness testified that without the approval of all the employees the Committee voluntarily gave a copy of the rules to management, but he did not remember why they did so. A vice-president of the petitioner admitted that most of the matters contained in the booklet were discussed with the Committee and that some of the provisions set forth therein as petitioner’s plant rules and policies resulted from meetings with the Committee.
The Committee at all times functioned in accordance with the provisions set forth in the booklet. Moreover, a copy of this booklet was given to every new employee hired by the petitioner.
Elections of Committee members were held twice a year at the plant during the lunch period, with the petitioner’s knowledge. It can be concluded from the findings of the trial examiner that these elections were run solely by the employees without any member of management in attendance. Notices of the election results were posted by the Committee on the plant bulletin, boards. The record shows that the employees were free to use the bulletin boards for any purpose. When the election meetings ran beyond the one half hour lunch period, the employees in attendance received their regular pay for such time. The trial examiner also found that whatever facilities and equipment involved in conducting the elections, such as ballots and the use of typewriters, were obtained at the plant.
The Committee rules made no provisions for general employee meetings to canvass their grievances and to formulate their demands in common. Such meetings were usually held whenever the chairman told “the committee members that it was about time” for a meeting. A witness testified that meetings were called in this manner every two or three weeks. The employees were informed of such meetings by a notice typed by the Committee chairman and posted by him on the plant bulletin boards. These meetings, which no representative of management ever attended, were held in the petitioner’s machine shop during the lunch period. At these meetings the employees brought up the subject matters which they would like to have the Committee discuss with management. The Committee then drew up an agenda which was submitted to the petitioner’s vice-president. He then notified the Committee by a notice posted on the plant bulletin boards of the time set for a meeting with management. Meetings with management were held in the President’s office during working hours and, as the trial examiner found, they frequently continued beyond the normal workday. The following day the Committee reported the results of its meeting with management at a meeting of the employees.
When employee meetings went beyond the regular lunch period, all employees in attendance continued to be paid their regular wages for that period. It was stipulated by the parties that some of these meetings ran from five to fifteen minutes over the regular lunch hour. The Committee members were paid their regular wages for time spent at management meetings during working hours and were paid time and a half for the period beyond the normal workday, when the total number of working hours for the week was above forty. A Committee member, who acted as secretary, typed the minutes of the employee meetings and of meetings with management, using plant facilities. The vice-president of petitioner also typed the minutes of the Committee meetings with management and furnished a copy to the Committee.
The Committee had no constitution or bylaws other than the Committee rules set forth above. There were no membership dues, no provisions or requirements for employee membership and no indicia of membership for the employees.
To this point the facts recited concern the background of the instant case. The sixth month statutory period, upon which the findings of unfair labor practices are based, commenced on April 21, 1955.
Since April 21, 1955 the trial examiner found that the Committee continued to exist and function in all respects in the same manner as described above until its suspension. Further, that the petitioner continued furnishing each new employee a copy of the booklet containing the rules of the Committee and the petitioner’s plant rules and policies.
Elections, employee meetings, and management meetings were held at the plant. The employees in attendance were paid their regular wages when elections and meetings ran beyond the one half hour lunch period, and Committee members were paid for time spent at meetings with management when the meetings lasted beyond the normal workday. The Committee existed without any provisions for membership of the employees generally and without any source of revenue.
Since the beginning of the statutory period, on April 21, 1955, the Committee met with management approximately six times discussing a wide variety of terms or conditions of employment. The Committee, however, has not requested the petitioner to negotiate a written collective bargaining agreement.
Upon charges filed by the United Steelworkers of America, AFL-CIO, the general counsel of the Board issued a complaint dated January 10, 1956. The complaint alleged, in substance, that petitioner engaged in unfair labor practices by dominating, assisting, contributing to the support of, and interfering with the administration of the Committee. After a hearing on January 31, 1956, the trial examiner issued an intermediate report and recommended order which was later adopted by the Board in its decision and order of May 21, 1956.
The question presented in these proceedings is whether substantial evidence on the record considered as a whole, as provided by § 10(e) of the Act, supports the Board’s conclusions that petitioner committed unfair labor practices in violation of § 8(a) (2) and (1) and § 7.
Initially, we note that substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. National Labor Relations Board, 1938, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. Furthermore, it has been established that it is for the Board and not the courts to find the facts and to draw inferences from the evidence. National Labor Relations Board v. Pennsylvania Greyhound Lines, 1938, 303 U.S. 261, 58 S.Ct. 571, 82 L.Ed 831. Equally well established, however, is the principle that it is the responsibility of the reviewing court to determine “whether the Board’s findings are supported by substantial evidence and whether its conclusions are reasonably inferable from the evidence.” National Labor Relations Board v. Sun Shipbuilding & Dry Dock Co., 3 Cir., 1943, 135 F.2d 15, 25. Where the findings of the Board with respect to questions of fact are not supported' by substantial evidence on the record considered as a whole the reviewing-court has exclusive jurisdiction “to make and enter a decree enforcing, modifying,, and enforcing as so modified, or setting aside in whole or in part the order of the Board,” as provided by § 10(f). Guided by these standards we believe the Board’s findings are not supported by substantial evidence.
We turn now to the first item of evidence, specifically, the circumstances surrounding the formation of the-Committee, upon which the Board relied for its findings. It appears in the record that in October 1952, shortly after the United Steelworkers of America lost, the election at petitioner’s plant, president George called a meeting of the employees and suggested “that they have a permanent grievance committee, if that is what they wanted to call it.” George then left the meeting and the employees proceeded to form the Shop Committee. From this the Board inferred that “the proposal and impetus for the formation of the Shop Committee came from the [petitioner’s] President George,” and, further, that “inherent in the [petitioner’s] suggestion was a promise to recognize and deal with the Shop Committee upon its formation.”
We believe that the Board’s inferences in this respect are without foundation in the evidence. It is clear that the finding of an unfair labor practice cannot stand in the face of the First Amendment or of § 8(c), if the employer’s statement, upon which the finding is based, does not contain some threat of reprisal or force or promise of benefit. National Labor Relations Board v. Corning Glass Works, 1 Cir., 1953, 204 F.2d 422, 35 A.L.R.2d 408. Likewise, an employer’s statement cannot be used as background material for the finding of an unfair labor practice where such statement falls short of restraint or coercion.
Looking at the record as a whole, there is no reason for concluding, as the Board seems to have, that George’s statement gave rise to a labor organization which was the creature of management at inception, and which functioned in subservience to management after inception, contrary to § 8(a) (1) and (2).
If any meaning can be attxdbuted to George’s statement, it is that he preferred to deal with a permanent grievance committee as opposed to other types of labor organizations. The very fact that the employees formed the Shop Committee, an organization with much wider scope than a grievance committee, dealing with wages, hours, pensions, holidays and other working conditions as it did, shows how little the employees were influenced by George’s statement. However, even if the statement be deemed an expression of a preference as between labor organizations by petitioner, it would not in itself constitute background material of unlawful interference with employees in the exercise of their rights under the Act. See Jefferson Electric Co. v. National Labor Relations Bd., 7 Cir., 1939, 102 F.2d 949. Only if “such asserted preference, with all surrounding facts and circumstances, amounts to improper influence and approaches a coercive character” is it to be condemned. Diamond T Motor Car Co. v. National Labor Relations Board, 7 Cir., 1941, 119 F.2d 978, 982. It is noteworthy in this connection that there was no evidence of a background of union hostility on the part of petitioner. Neither was there any testimony giving any indication that the employees acted under pressure emanating from George’s statement. In conclusion, we believe that the Board, in making its findings, should not have placed the reliance that it did on George’s statement.
The next item of evidence deals with petitioner’s acceptance of the Committee as the representative of the employees without asking for proof of its representative status, although earlier it had forced the United Steelworkers of America to prove its majority status in an election. From this the Board concluded for the purpose of background evidence that “it can hardly be said that the Shop Committee was the freely chosen bargaining agent of the employees.” We believe that in the circumstances here, especially in light of the fact the employees in a secret meeting had approved the Shop Committee as their representative organization by voting for members on the Committee, hasty recognition of the Committee did not amount to background evidence of support or domination by the petitioner. To constitute such evidence hasty recognition of one labor organization would have to be coupled with some nonprivileged discrimination against a rival labor organization, and there is no evidence of that in this case. See National Labor Relations Board v. Corning Glass Works, supra; Chicago Rawhide Mfg. Co. v. National Labor Relations Bd., 7 Cir., 1955, 221 F.2d 165. Petitioner, in forcing the United Steelworkers of America to an election, did not discriminate, but rather exercised a right given to it by the Act.
Another basis for the Board’s findings that petitioner supported and dominated the Committee was the printing of the Committee’s rules in petitioner’s booklet of “Plant Rules and Policies,” and the distributing of this booklet to its employees. The Board concluded as to this booklet that it created the inference in the minds of new employees that the “Shop Committee was and is a creature of the [petitioner].” We do not believe that there is any evidence of this in the record, for there is no testimony by any employee stating he was so misled. Moreover, it is clear from the record that the Committee did not object to such printing by the petitioner. In fact, notwithstanding that the employees as a group did not vote on this action, it appears that the Committee voluntarily gave these rules to management. The printing and distribution of materials by an employer for a labor organization is not in itself .a violation of the Act. Cf. Wayside Press, Inc., v. National Labor Relations Board, 9 Cir., 1953, 206 F.2d 862.
Next we turn to a.review of the structure and governing rules of the Committee which the Board found to be further evidence of control and domination by petitioner. These rules, set forth in detail above, admittedly did not protect Committee members from petitioner’s inherent power to discharge them, did not provide for a written agreement between petitioner and its employees and did not provide for general meetings of the employees or membership dues. We agree with the Board that without such provisions the Committee lacks the organizational strength and degree of independence which might be desirable. Nonetheless, the record clearly shows that these rules were drawn up solely by the employees. Furthermore, there is no actual evidence of domination of the Committee by petitioner. In view of the foregoing, we agree with the court in Chicago Rawhide Mfg. Co. v. National Labor Relations Bd., supra, 221 F.2d at page 170, where in a closely similar factual situation, it stated:
“These acts do no more than evidence the presence of potential means for interference and support, a possibility that is always present to some degree in an employer-employee relationship. But, without evidence of the realization of that potential, they do not. furnish a substantial factual basis for an unfair labor practice finding.”
Without proof of actual domination, we believe the Board erred in basing its finding of employer domination on the possible inadequacy of the rules under which the Committee functioned.
The final portion of evidence upon which the Board relied is the payment by petitioner to the five members of the Committee for time spent on meetings with management, payment to the employees when their meetings with the Committee went beyond the lunch period, and use of plant property for Committee meetings with management and with the employees. Before proceeding further, it must be noted that support of this type, as the Board stated, has been regarded only as “an aspect of control.” See National Labor Relations Board v. H. E. Fletcher Co., 1 Cir., 1939, 108 F. 2d 459. In the cases cited by respondent there existed, in addition to evidence of such support, other acceptable evidence of support and domination which is not true in this case.
Here, moreover, payments made to employees by petitioner in the above situations were of a minimal amount. For example, the record shows that Committee meetings with management were normally called at two o’clock and remained in session from fifteen minutes to two hours. The official quitting time being three-thirty o’clock, a greater portion of the payments made to the Committee members were permissible under § 8(a) (2). As to payments made by petitioner to employees when their meetings went beyond the lunch hour, this too is not formidable evidence of support and domination. It appears by stipulation in the record that only “some” of these meetings ran from five to fifteen minutes over the regular lunch hour.
Finally, the use of petitioner’s machine shop during the lunch hour for general employee meetings and the use of the president’s office as the location of Committee meetings with management round out the facts about which the Board concluded:
“ * * * In sum, the [petitioner] has made the functions of the Shop Committee possible by enabling them to take place on its property, with the use of such facilities as are needed, and by payments for time spent both during and after working hours. By such subsidies, the [petitioner] remains in a position to assure its domination over the Shop Committee.”
We believe that the use of company property, and even time, for employee meetings, in the circumstances of this case, does not constitute substantial evidence on the record as a whole of support or domination. Chicago Rawhide Mfg. Co. v. National Labor Relations Bd., supra; National Labor Relations Board v. Valentine Sugars, 5 Cir., 1954, 211 F. 2d 317. This evidence shows no more than cooperation by petitioner and a possibility of company control. However, “neither mere cooperation, preference nor possibility of control constitute unfair labor practices; and the Board may not infer conduct that is violative of the Act from conduct that is not, unless there is a substantial basis, in fact or reason, for that inference.” Chicago Rawhide Mfg. Co. v. National Labor Relations Bd., supra, 221 F.2d at page 168. The sections of the Act before us were “not enacted to prohibit or penalize courteous and friendly, or even generous, actions on the part of employers.” National Labor Relations Board v. Valentine Sugars, supra, 211 F.2d at page 320.
The respondent cites many eases in support of the decision of the Board. But, as the Board stated in its conclusions, “no two cases [in this field] are altogether alike, and each must be judged by the totality of its own facts.” Here, as opposed to many of the cases cited by respondent, the totality of the facts does not constitute substantial evidence of support or domination.
A decree will be entered setting aside the order of the Board.
. “1. The Shop Committee
“The Shop Committee is set up under the following rules:
“1. The Committee shall act as representatives of the employee and not as sole bargaining agents.
“2. The limitations of the powers vested in the committee shall be determined by the majority of the shop employees.
“3. In the event that a committee member is found guilty of negligence in the performance of his duties, he shall, by a majority vote of the employees, be asked to relinquish his position as a committee member.
“4. The initial or present committee shall serve for a period of one (1) year. Upon the expiration date of the one year period, two of the present committee members shall be retained for an additional period of six months. The remaining three (3) positions of the committee shall be voted upon for a one year period.
“5. The cominittee shall be subject to report to the shop employees all matters of discussion with the management, which pertains to the welfare of the shop employees, excepting that information which in the opinion of the committee, may prove to be detrimental to the efficient operation of said committee.
“6. In the event of employment termination, the unexpired term of a committee member shall be filled by the losing candidate who received the largest number of votes.
“7. The committee shall report to the employees on the very next scheduled working day following a meeting with management to convey to the employees any information regarding the progress being made in connection with tentative agreements to be reached upon by management and the employees.
“The Shop Committee will meet once a month at a regular time to be selected by management and committee.”
. The record only shows that some typing was done by “somebody upstairs in the office.” It neither indicates whore the paper used by the Committee came from, nor who did the typing. As to the source of the paper, one witness testified that it could have been scraps of paper that were used for ballots.
. Although the only detailed findings were made by the trial examiner in his intermediate report, since they were adopted by the Board in its decision and order, they will be referred to as findings of the Board.
. Although these circumstances, having occurred prior to April 21, 1955, the beginning of the six month statutory period, cannot be the basis of findings of unfair labor practices, the Board correctly concluded that they can be used as background shedding light on the character of the Committee and of the petitioner’s conduct after April 21, 1955.
. “Sec. 8. * * *
“(c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. * * * ” -
. It was estimated by counsel for the respondent in oral argument before us that payment by petitioner to members of the Committee for meetings that went beyond the workday amounted to seventy-five cents.
Question: What is the second general issue in the case, other than labor relations - union organizing?
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_r_bus
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3
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
SUNKIST GROWERS, INC., Plaintiff-Appellant, v. ADELAIDE SHIPPING LINES, LTD., Claimant-Appellee, and Salen Reefer Services AB, and M/V Gladiola, Defendants-Appellees.
No. 76-3112.
United States Court of Appeals, Ninth Circuit.
March 8, 1979.
Rehearing Denied April 19, 1979.
Stephen H. McReavy (argued), of Hall, Henry, Oliver & McReavy, San Francisco, Cal., for plaintiff-appellant.
Frederick W. Wentker, Jr. (argued), of Lillick, McHose & Charles, San Francisco, Cal., for claimant-appellee.
Before DUNIWAY and KILKENNY, Circuit Judges, and McGOVERN, District Judge.
The Honorable Walter T. McGovern, United States District Judge for the Western District of Washington, sitting by designation.
KILKENNY, Circuit Judge:
This is an appeal in admiralty from a judgment dismissing appellant’s complaint in rem and in personam against appellees for cargo damage aboard the vessel GLADIOLA.
FACTS
The facts are not seriously in dispute. Appellant [Sunkist] is a California corporation engaged in packing and shipping citrus fruit. Claimant [Adelaide] is a corporation organized and existing under the laws of Great Britain and is the owner of the vessel GLADIOLA, a general cargo vessel of 11,-890 tons carrying capacity. Salen is a corporation organized and existing under the laws of the country of Sweden and at all times relevant herein was the charterer of the GLADIOLA.
During the last week of August and the first week of September, 1974, at the Port of Long Beach, California, a cargo of 58,464 cartons of fresh lemons in good order and condition, owned by Sunkist, was loaded on board the GLADIOLA for refrigerated transportation to Gdansk, Poland. Sunkist and Salen conducted their shipping transactions pursuant to a three year contract. Salen provided the vessels once or twice a week to transport Sunkist’s citrus cargoes. Occasionally, Sunkist would not fill the entire vessel with its cargo and in those instances, and under the terms of the contract, Salen could arrange for additional cargo to be shipped and would make stops en route to load this extra cargo. Employees of Sunkist and Salen were in daily contact by telephone and telex. When additional cargo was to be transported, Sunkist was informed by telex of the type of cargo that would be loaded and the additional stops that would be made in order to pick up the extra cargo. As long as the additional loading stops did not unduly delay the ship’s arrival in Northern Europe, nor adversely affect the citrus crop shipped by Sunkist, it did not object to deviations from a direct course to Northern Europe. In this instance, Sunkist was informed by telex that the vessel would be stopping in Ecuador to load bananas. It did not object. The GLADIOLA departed Long Beach on September 2, 1974, for Ecuador, arriving and anchoring in Guayaquil Harbor on September 10th.
On that day, at approximately 5:50 P.M., a fire broke out in the engine room. This room was automated and normally in unmanned status, as it was at the outbreak of the fire. The cause of the fire was a separation of a Serto compression pipe fitting and an Ermerto ferrule in the low pressure diesel fuel line of the vessel’s number 1 generator. The diesel' fuel sprayed on to hot surfaces of the numbers 1 and 2 generators.
Cummings, an extra third engineer in charge of answering alarms from the unmanned engine room, upon hearing the fire alarm, picked up his ear muffs and went to the engine room where he proceeded to the generator flat. He observed a break in the fuel line and oil splashing onto the hot exhaust turbo chargers of the numbers 1 and 2 generators. At that time there were no flames. Then occurred what might well be described as a Shakespearean comedy of errors, with a result akin to one of his tragedies. Because he had no training in fighting engine room fire and no one had instructed him on what to do in such an emergency, Cummings failed to use the diesel oil turn off screw two or three feet below the joint, nor, for the same reason, did he turn off another valve some twenty to twenty-five feet from the generator on the main diesel oil supply line. This valve could have been closed by pulling a pin on a quick release mechanism. The second engineer arrived at the scene about this time but, inasmuch as his fire fighting training was no better than Cummings’, he also failed to close either valve. After reporting the fire to the control room, Cummings returned to stop the generator, but when he returned the flames prevented him from getting close enough to the valve. While the fire was still confined to the number 1 generator and the area immediately above it, the second engineer attempted to use the 50 kilogram fire extinguisher but turned the control valve on the extinguisher in the wrong direction and broke it, rendering the extinguisher completely inoperative. The valve on this fire extinguisher was activated by screwing the value clockwise, rather than counterclockwise. Cummings wasn’t even aware of the location of this “left-handed monkey wrench.” While the second engineer was rendering the large fire extinguisher inoperable, Cummings went back to the control room and reported the generator on fire. It was not until then that he shut off the fuel to the pumps on the number 1 generator by means of a simple switch.
The fire spread rapidly to the oil in the bilges and along the inflammable butyl insulated electric cable, thus filling the engine room with dense smoke. Within minutes the vessel blacked out and the engine room had to be evacuated. It was then determined that the chief engineer was still on the refrigeration flat. While attempting to locate the chief engineer, Cummings stumbled over his body. He appeared to be dead. After attempts to save the engineer failed, the captain finally ordered the remotely controlled C02 fire extinguisher system in action, but the fire was out of control and could not be extinguished by the use of this system. Three days later, on September 13, 1974, the fire was extinguished, but the damage was very extensive. The chief engineer died in the fire and the captain suffered a fatal heart attack a couple of days later.
Although the lemons had not been damaged in the fire, the destruction of the refrigeration equipment made it necessary to find local refrigerated storage, local markets, or transshipment of the lemons. All of these efforts failed and it became necessary to give the lemons to the military authorities for distribution to the people. The value of the lost lemon crop was stipulated at $350,784.00.
ISSUES ON APPEAL
From a decision of the district court holding that both appellees were protected from liability.by the fire exemption statutes, appellant appeals and raises three issues:
I. Were appellees required to exercise due diligence to make the GLADIOLA seaworthy as a prerequisite to claiming a fire exemption under the Carriage of Goods by Sea Act of 1936, 46 U.S.C. §§ 1300, et seq.l
II. Was there a lack of due diligence on the part of appellees either in connection with the defects in the vessel which caused the fire and contributed to its spread or in failing to man the GLADIOLA with a crew properly trained in fighting fires in ships’ engine rooms?
III. Did the GLADIOLA’S deviation to Guayaquil deprive the appellees of the fire exemption?
DISTRICT COURT’S FINDINGS AND CONCLUSIONS
In its findings of fact, the district court found, among other things, that the GLADIOLA, prior to the commencement of the voyage, could have been made safe in the following respects:
“(1) The butyl lining on the electrical cables could have been sheathed in metal to reduce a blinding smoke in the event of fire;
(2) A flange joint, rather than a compression joint, could have been used on the fuel pipe leading into the generator, making a stronger connection;
(3) Fewer joints could have been designed in the pipe to reduce the possibility of leaks;
(4) Protective shields could have been placed around the generators to reduce the spray of hot fuel in the event of a leak;
(5) A SERTO ferrule could have been maintained in the particular fuel pipe joint that caused the leak, rather than the ERMERTO ferrule replacement that had been inserted;
(6) Barriers and fire dampers could have been placed along the electric cabling to control the spread of fire throughout the ship;
(7) Suits of protective fire clothing could have been maintained on board.” 1976 A.M.C. 2597, at 2602.
After making these findings, the court went on to say that a prudent vessel owner and/or charterer would not necessarily have made most of these modifications, including a statement that although a Serto ferrule should have been maintained in the particular joint, “A failure to maintain the proper ferrule would be the fault of the crew in failing to report ferrule replacement, rather than the fault of the owner in failing to notice that a replacement had been made.” Similar findings were made with reference to the other deficiencies mentioned by the court.
The court also found that the crew should have been given specific instructions on the proper way to deal with engine room fires and the exact method of handling fire extinguishers. Nonetheless, the court went on to say that a reasonable vessel owner and or charterer, in preparing to deal with fire, would have relied on the certification of its crew members, along with their prior fire fighting experience and training, ship drills and equipment labelled with instructions for use.
Based on its findings of fact, the district court concluded, among other things:
u * sic *
4. In a fire loss case under the Carriage of Goods by Sea Act, or the Fire Statute, the owner or charterer has the burden of proving that the loss resulted from the fire. The burden then switches to the shipper to show that the fire was the result of the design, neglect, fault, or privity of the owner or charterer. And I rely on the case of Asbestos Co. Limited v. Compagnie de Navigation, 1973 AMC at 1683, 480 F.2d 669 (2 Cir., 1973). In a fire case, the charterer and/or vessel owner do not have the burden of initially proving that they exercised due diligence in making the vessel seaworthy. [Emphasis supplied.]
5. While this allocation of the burden of proof runs contra to the general scheme of proofs in shipping cases, since normally a shipper can recover merely by showing that he delivered the goods to the carrier in good condition and that the goods arrived damaged, American authority is clear that the fire exemption provisions shift the burden of proof to the shipper. The plaintiff’s reliance on the Canadian authority of Maxine Footwear Company v. Canadian Government Merchant Marine, [1959] 2 Lloyd’s Rep. 105, is misplaced. Although the Court in that case did place the burden of proving initial seaworthiness on the carrier, that case was dealing with a Canadian statute fashioned on the Hague Rules.” [Emphasis supplied.] 1976 A.M.C. at 2604.
THE STATUTES
The fire exemptions touching upon the problem before us are the 19th Century Fire Statute, 46 U.S.C. § 182 and the COG-SA Fire Exemption, 46 U.S.C. § 1304(2)(b).
The 19th Century Fire Statute provides:
Ҥ 182. Loss by fire
No owner of any vessel shall be liable to answer for or make good to any person any loss or damage, which may happen to any merchandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner.” [Emphasis supplied.]
COGSA, §§ 1301(a), 1303 and 1304(1) and (2), provide in pertinent part:
Ҥ 1301. Definitions
$ $ * $ 4¡ *
(a) The term ‘carrier’ includes the owner or the charterer who enters into a contract of carriage with a shipper.”
# # ik * # *
Ҥ 1303, Responsibilities and liabilities of carrier and ship
Seaworthiness
(1) The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to —
(a) Make the ship seaworthy;
(b) Properly man, equip, and supply the ship;
(c) Make the holds, refrigerating and cooling chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage, and preservation. [Emphasis supplied.]
Cargo
(2) The carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.”
Ҥ 1304. Rights and immunities of carrier and ship
(1) Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped, and supplied, and to make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried fit and safe for their reception, carriage, and preservation in accordance with the provisions of paragraph (1) of section 1303 of this title. Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other persons claiming exemption under this section. [Emphasis supplied.]
Uncontrollable causes of loss
(2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from—
* * tfe * ift *
(b) Fire, unless caused by the actual fault or privity of the carrier; ” [Emphasis supplied.]
$ # >[< * Hi i)i
HISTORICAL BACKGROUND
In order to fully understand the nature of the complex legal problems presented, we must view them in their historical context, including the Common Law of Maritime Carriage of Goods at Sea, the Limitation of Liability Act of 1851 (46 U.S.C. §§ 181-189), the Harter Act of 1893 (46 U.S.C. §§ 190196), The Hague Rules as formulated by the Brussels Convention of 1924 and the Carriage of Goods by Sea Act of 1936 (COGSA) (46 U.S.C. § 1300, et seq.).
The Act of 1851 was passed by the Congress to promote the expansion of the American Merchant Marine and to protect the capital investment of those engaged in maritime shipping. It is clear that the legislation was enacted for the purpose of placing American ship owning interests on a competitive basis with British interests insofar as limitation of liability was concerned. Gilmore & Black, The Law of Admiralty, Second Edition, § 10-1, et seq., pp. 818-24. In addition to the Fire Statute Limitation (§ 182), the 1851 Act permitted the owner to limit his overall liability to the value of his interest in the vessel. (46 U.S.C. § 183).
Because the various sections of the 1851 Act were enacted together, the cases construing one section are frequently used to interpret another. In construing the 1851 legislation, the courts have held that while an owner may rely on the fire exemption therein mentioned, a time charterer such as the appellee Salen, is not an owner within the meaning of the Fire Statute and is precluded from relying on § 182 for exemption. In Re Barracuda Tanker Corp., 409 F.2d 1013, 1015 (CA2 1969).
The subsequent history of maritime common carriage makes it obvious that the COGSA Fire Exemption of 1936, as distinguished from the 1851 Fire Statute, was part of an overall plan to settle the adverse interests of carriers and cargo shippers. This history is outlined in Gilmore & Black, The Law of Admiralty, Second Edition, §§ 3-22 to 3-24, pp. 139-144.
From that history, we gather that the British Courts generally upheld the validity of what was then commonly known as the “negligence” exceptions in bills of lading, while the federal courts in the United States held it against public policy for the carrier to contract itself out of liability for its own negligence. Consequently, when goods were carried under a bill of lading containing such a clause, the accessibility of courts or amenability to service of process made a crucial difference in the outcome of the litigation. In part as a result of this difference, the British Merchant Marine became dominant in the Atlantic. The United States, of course, was vitally interested in seagoing cargo, both export and import. Therefore, to partially solve this problem, the Congress in 1893 enacted the Harter Act, 46 U.S.C. §§ 190-96, which Act attempted to strike a balance between the interests of the carrier in being free from all claims based upon its negligence, and the shippers who wished to hold the carriers responsible for the consequences of any sort of negligence. In effect, the Harter Act declared “negligence” exceptions in the bills of lading to be null and void, but carriers would not be liable for goods damaged due to the shippers acts or omissions or for errors of the crew, if the carrier did exercise due diligence to make the vessel seaworthy and to properly maintain, equip and supply the vessel.
While this compromise served to protect a cargo shipper’s interest with respect to litigation in American courts, shippers in most of the other countries of the world were still at the mercy of the exoneration clauses in the bills of lading, or at least of the different judicial interpretations of the clauses which carriers continued to carefully insert in the bills. As an outgrowth of the conflicts between these two warring factions, the interested antagonists, which included banking and underwriting interests, met at the World’s Shipping Conference of 1920 to put the Harter Act principle into effect generally. As an outgrowth of these meetings, the Brussels Convention of August 25, 1924, promulgated what are commonly known as The Hague Rules which, with important additions, amounted to an international adaptation of the Harter Act. However, the United States did not ratify the Convention or enact COGSA, a statutory codification of The Hague Rules, until 1936.
It is well recognized that The Hague Rules or COGSA have superseded the Harter Act with respect to foreign trade and are incorporated by reference in every bill of lading for foreign transport to and from the United States. It has been said that the primary purpose of COGSA is to protect carriers engaged in foreign trade to and from the United States against all-encompassing liability, while protecting the shipper’s interest by assuring that due care is exercised in making the ship seaworthy. Wirth, Ltd. v. S/S Acadia Forest, 537 F.2d 1272, 1279 (CA5 1976). The intent of the Congress in passing COGSA is made absolutely clear by the language of Paragraph (8) of Section 3 of the original enactment, 49 Stat. 1209, 46 U.S.C. § 1303(8).
“Limitation of liability for negligence
(8) Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, fault, or failure in the duties and obligations'provided in this section, or lessening such liability otherwise than as provided in this chapter, shall be null and void and of no effect.... ” [Emphasis supplied.]
This is the section which requires the carrier before and at the beginning of the voyage to exercise due diligence to (a) make the ship seaworthy; and (b) properly man, equip, and supply the ship.
DISCUSSION
As we read the record, along with the elastic and equivocal findings of fact of the district court, there is overwhelming evidence that the appellees were in violation of 46 U.S.C. §§ 1303 and 1304 of COG-SA before and at the inception of the voyage in two respects:
(1) It is undisputed that the carrier failed to provide a proper Serto ferrule fitting in the low compression fuel joint that separated. It is also undisputed that the fitting had not been touched after the commencement of the voyage. This separation permitted the diesel oil to spray upon the hot generator parts, thus causing the fire. Moreover, the failure to use a flanged, rather than a compression joint in the fuel line is a clear violation of Lloyd’s Rule, Chapter E, § 312. The appellees’ witness Seymour conceded that Rule E312 applied to the joint in question and that the joint was not flanged as required by the rule. There is no evidence that Lloyd’s ever granted a variance of this rule. The fact that the district court said that compression joints on low pressure fuel lines were used on “many British ships” is of no importance. Mere compliance with a custom which falls below the United States’ and Lloyd’s standards is not sufficient. See Texas & Pacific Railway Co. v. Behymer, 199 U.S. 468, 470, 23 S.Ct. 622, 47 L.Ed. 905 (1903); Waterman Steamship Corp. v. Gay Cottons, 414 F.2d 724, 738-39 (CA9 1969). Even appellees’ own witness, Mr. Young, would not testify that Serto joints as used on the GLADIOLA were common. Appellees do not claim that the use of an Ermerto brand ferrule in a Serto brand fitting was proper. The lack of symmetry in the joint was obvious to appellant’s witness, Mr. Walsh, and was noticeable to even the owners’ high managerial representative, Mr. Cockrell.
(2) Furthermore, we hold that there is overwhelming evidence that there was lack of due diligence on the part of the appellees in their failure to man the vessel with a crew properly trained in engine room fire fighting. The engineers’ reactions to the fire, including both their failure to utilize the proper equipment available to shut off the flow of oil spewing from the defective joint and their inability to properly utilize the portable fire extinguisher, indicated a lack of fundamental preparation and knowledge of the various means available to efficiently control this type of fire.
A case closely in point and misread by the district court is Asbestos Corp., Ltd. v. Compagnie de Navigation, 480 F.2d 669 (CA2 1973). There the vessel THE MARQUETTE suffered an engine room fire. Unlike the case at bar, there was no fault on the part of the owner with respect to the cause of the fire. The claimed unseaworthiness involved the location of the fire fighting equipment and its controls in the engine room. At trial, the owners contended that they could be liable only if their personal negligence caused the fire. The district court held for plaintiff. In speaking of the 1851 Fire Statute and the COGSA fire exemption, the appellate court said:
“Appellants urge as to each a narrow reading of the exception to the exemption. Under their construction, a fire ignited because of lack of due diligence by the shipowner would result in liability, but failure to maintain equipment adequate to extinguish a nonnegligently ignited fire before it causes the damage would not. Judge Levet rejected this construction. He held that an inexcusable condition of unseaworthiness of a vessel, which in fact causes the damage — either by starting a fire or by preventing its extinguishment — will exclude the shipowners from the exemption of the Fire Statute and COGSA. We agree.” Id. at 672. [Emphasis supplied.]
The “inexcusable condition of unseaworthiness” mentioned in Asbestos Corp. no doubt refers to a condition of unseaworthiness where the carrier did not use due diligence. That is to say, if the carrier used due diligence, the unseaworthiness would be excusable.
True enough, the Second Circuit in speaking to both the Fire Statute and COGSA made the statement: “The burden of proof is on the carrier to show that he exercised due diligence. The fire exemption provisions merely shift this burden of proof to the shipper. If the carrier shows that the damage was caused by fire, the shipper must prove that the carrier's negligence caused the damage.” Id. at 672-673. [Emphasis supplied.] The use of this language was entirely unnecessary to the decision for the reason that the court had already affirmed the trial court’s conclusion that the Marquette was unseaworthy because of her owners’ failure to exercise due diligence.” Id. at 672. We quote the key language of the district court opinion:
“Minimal foresight, however, dictates that the engine room is [a] highly volatile compartment of a ship and the possibility of fire breaking out is ever present. A shipowner must anticipate and provide for the contingency that a fire may break out in the engine room disabling all fire fighting equipment located in the engine room. The owners of the Marquette through their ‘design or neglect’ and ‘privity or knowledge’ were negligent in placing all fire fighting equipment inside the engine room and failing to provide an emergency pump or fire system located or controlled from outside the engine room. This negligence on the part of the shipowners displays a total disregard for minimal protection of cargo and rendered the Marquette unseaworthy. Under the circumstances this court concludes that the defendants-shipowners are not exempt from liability under COGSA § 1304(2)(b) or the Fire Statute." 345 F.Supp. 814 at 823. [Emphasis supplied.]
Our overlengthy analysis of the language in Asbestos Corp. is prompted by the casual treatment of the burden of proof by the author of the appellate court opinion. Although relying on COGSA, he completely overlooks the language of §§ 1303(1) and 1304(1) which places the burden of showing due diligence to provide a seaworthy ship squarely on the shoulders of the carrier. It is this burden that appellees must overcome in order to invoke the exemptions of either § 1304(2)(b) or the Fire Statute.
In Albina Engine & Machine Workers v. Hershey Chocolate Corp., 295 F.2d 619 (CA9 1961), we held that “neglect of the owner” under the Fire Statute refers to “the neglect of managing officers and agents as distinguished from that of the master or other members of the crew or subordinate employees.” P. 621. In the case at bar, however, that distinction is immaterial. Here, the design or neglect was that of managing officers or supervisory employees, not that of the master or crew or subordinate employees. The “design or neglect” being the failure to provide a proper compression or flange joint and to properly man and equip a trained crew prior to the commencement of the voyage.
Our own court in New York Mdse. Co. v. Liberty Shipping Corp., 509 F.2d 1249 (CA9 1975), has placed Asbestos Corp. in proper perspective. In Liberty Shipping, we held there was substantial evidence supporting the trial court’s findings that the damage to the cargo resulted from the unseaworthiness of the vessel consisting of the incompetence of the master and the crew who were not properly trained in use of the vessel’s fire fighting equipment. As in Asbestos Corp., the cause of the fire which damaged the cargo was actually unknown. Here, we know that the cause of the fire was an improper ferrule. After reviewing the facts, Judge Merrill restated with approval what has been said many times, that fire is the peril most dreaded by mariners and one most difficult to combat in a fully laden ship. That being the fact, he agreed with the trial court that it was incúmbent upon the vessel’s owners to see that the master and the crew were fully trained in the operation and use of fire equipment.
In Liberty Shipping, the appellant contended that the district court’s decision disregarded the owner’s immunity from liability for damage to cargo caused by fire as granted by both the Fire Statute and by COGSA. The court in disposing of this contention quoted the same language cited supra, at page 1335, from Asbestos Corp., and followed the quotation with the language: “In turn, we agree.” The appellant there made essentially the same arguments as here made by the appellees. In response, the court said:
“Appellant next contends that the district court has, contrary to the statutory exemptions, placed upon the owner strict liability for the loss suffered by cargo. Appellant reasons that the court, by attributing responsibility for cargo damage jointly to the fire and to unseaworthiness, has placed upon the owner the traditional nondelegable duty to make the ship seaworthy and thus has imposed strict liability. The statutory exemptions, it is contended, do not permit the imposition of liability by nondelegable duty. Appellant relies on Earle & Stoddart, Inc. v. Ellerman’s Wilson Line, Ltd., 287 U.S. 420, 53 S.Ct. 200, 77 L.Ed. 403... (1932) "
$ $ $ & # &
“However, the district court’s holding here was entirely consistent with Earle & Stoddart. COGSA provides, 46 U.S.C. § 1303(1):
‘The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to—
(a) Make the ship seaworthy;... ’
In the case before us liability was not based on the traditional elements by which an owner is held liable for unseaworthiness of his vessel — those related to warranty and nondelegable duty. Here there was owner neglect and actual fault constituting failure to exercise the due diligence required by COGSA through permitting the vessel to put to sea without having properly trained the master and crew in the use of fire-fighting equipment and without having remedied deficiencies in the vent closing devices. Where the unseaworthy conditions that were the cause of the fire damage existed by reason of owner neglect or actual fault, the exemptions created by the Fire Statute and COGSA do not apply.” 509 F.2d at 1251-52. [Emphasis supplied.]
Of more than ordinary significance is the fact that the Liberty Shipping court did not place upon the shipper the burden of proof on the issue of due diligence. To the contrary, Liberty Shipping, by the use of the language: “Here there was owner neglect and actual fault constituting failure to exercise the due diligence required by COGSA..”, clearly was referring to the due diligence required by COGSA in 46 U.S.C. §§ 1303(1) and 1304(1). In § 1304(1) the burden of proof is placed directly on the carrier by the following language: “... Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other persons claiming exemptions under this section.” [Emphasis supplied.]
Appellees argue that the language “this section” ending the last sentence of paragraph 1, 46 U.S.C. § 1304(1) limits the vitality of the “due diligence” provision to that paragraph and does not apply to paragraph (2), the Fire Exemption Clause of COGSA. This contention is groundless. Appellees fail to recognize that the entire contents of 46 U.S.C. § 1304 were encompassed in “Section 4” of the initial legislation, 49 Stat. 1210. That the Congress was aware of the distinction between “paragraph” and “section” is made crystal clear by the use of the language “in accordance with the provisions of paragraph (1) of Section 3 of this title.” This language is used in the same paragraph as the word “section” in “Sec. 4” of COGSA, now § 1304. Obviously, both paragraphs must be read and construed together.
Two Canadian cases, Maxine Footwear Co., Ltd. v. Canadian Government Merchant Marine, Ltd. [1959] A.C. 589; [1959] 2 Lloyd’s List L.R. 105, [THE MAURIENNE]; and, THE ANGLO-INDIAN, [1944] A.M.C. 1407, are highly persuasive.
Involved in THE MAURIENNE is what we might term the Canadian COGSA. Like our own legislation, it was lifted almost word for word from The Hague Rules. The language of the Canadian COGSA with reference to the pertinent sections is almost identical with ours. Of no importance is the fact that the Canadian legislation used the word “Article,” rather than the word “Section.” Suggesting that the American Congress and the Canadian Parliament were working in unison is the fact that the Canadian Water Carriage of Goods Act was enacted in 1936, the same year that COGSA was enacted by the American Congress. The fact that the language “subject to the provisions of Article IV” appears at the beginning of Paragraph Two of Article III of the Canadian COGSA is of no importance here. The provisions of Article IV would be meaningless if they were not related to Article III. For comparison, we attach, as Appendix B, the equivalent Articles on the Canadian COGSA, corresponding to §§ 130
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_usc1sect
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338
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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 most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
MITCHELL et al. v. UNITED STATES.
No. 2207.
Circuit Court of Appeals, Tenth Circuit
March 18, 1941.
C. Ray Smith, of Santa Fe, N. M. (Hugh B. Woodward and R. F. Deacon Arledge, both of Albuquerque, N. M., on the brief), for appellant.
Everett M. Grantham, U. S. Atty., of Sante Fe, N. M. (Gilberto Espinosa, Asst. U. S. Atty., of Albuquerque, N. M., on the brief), for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
BRATTON, Circuit Judge.
This appeal brings here for review the conviction and sentence of H. Dulaney Mitchell upon the first count of an indictment charging a violation of the mail fraud statute, section 215 of the Criminal Code, 18 U.S.C.A. § 338. The count charged that, having devised and intending to devise a scheme to defraud and to obtain money and property from Alma E. Doering by false and fraudulent pretenses, representations and promises, appellant stated to her that he represented a major oil company and was authorized to purchase oil leases for it; that he presented to her a false and fictitious letter purporting to be from the company giving him such authority; that he represented that the company had fixed a value of $50 per acre on oil leases covering land in Chaves County, New Mexico; that he had a client in Camden, New Jersey, who was a barber and who owned a lease covering 80 acres of such land;- that he could sell such lease to the victim for $10 per acre and that the oil company •.would purchase it from her at $50 per acre; that in order to further induce her to purchase the lease covering the land in Chaves County, he represented to her that the company would purchase- from her certain leases which she owned covering land in San Miguel County, New Mexico, at $25 per acre, or a total consideration of $4,000; that if she would purchase the lease covering the land in Chaves County at $10 per acre, he would see that a check of the company for $4,000 would be given her in a few days; that all of such representations and pretenses were false and fraudulent, and were made with the intent and purpose of securing sums of money from the victim; and that appellant was actually engaged in finding purchasers for leases on land in New Mexico owned by one Dorothy Heard. It was further charged that for' the purpose of executing such scheme, appellant caused to be delivered by mail to the Commissioner of Public Lands of the State of New Mexico, at Santa Fe, an envelope containing an assignment of an oil and gas lease signed by Dorothy Heard.
It is contended that the trial court erred in refusing to direct a verdict of not guilty for the reason that the scheme laid in the indictment had terminated at the time the mails were used. There was no conflict in the evidence. Alma E. Doering resided at Germantown, Pennsylvania, and she owned oil leases covering land in San Miguel County, New, Mexico. Appellant called on. her at her home, introduced-himself as H. D. Morton, stated that he represented a major oil company, exhibited a letter which purported to be from such company, examined her leases, and said that his company would pay $25 per acre for them. She replied that she did not expect to sell all of them for that price but would sell half of them. He then stated that he had a proposition to make, but he apparently left without making it. He returned’ later, and on that occasion represented to her' that he could buy from a person in Camden, New Jersey, a lease covering 80 acres at $10 per acre and that his company would buy it for $50 per acre, and he asked her to advance $800 with which to buy it. She stated that she had only $600. He took $200 out of his pocket and said that he would furnish that amount. The two went to the bank together. She obtained $600 in cash and delivered it. to him. He left with the statement that he was going to Camden to get the lease. He returned an hour or more later with a written assignment signed by Dorothy Heard, assigning to the victim a lease covering 80 acres of land in Chaves County. He delivered the assignment to the victim, and stated that it would have to be recorded and that she would have to write the letter. He then gave her $5 with which to pay for the recording, they went to the post office together, she mailed the assignment to the Commissioner of Public Lands of New Mexico, he left, she did not see him again, and she never got the check.
That Alma E. Doering was cheated and defrauded in a brazen manner is clear beyond doubt. But it must be kept in mind that the indictment did not undertake to charge in any form a general continuing scheme to defraud various persons, including Alma E. Doering, and the use of the mails during its life. Neither did it charge a continuing conspiracy to use the mails to promote such a scheme. Instead, it charged a specific scheme for the exclusive purpose of defrauding only one person out of money and property, and the proof showed a scheme to defraud her 'out of a definite sum in money. The scheme, as laid in the indictment and established by the proof, was consummated and completed when appellant received the money from her. The mails had not been used up to that time. It was after the receipt of the money, after the two had separated, after he had been gone for an hour or more, and after he had returned and delivered the assignment to her that the envelope was deposited in the post office for transmission and delivery to the addressee. The use of the mails after a scheme of the kind and nature charged and established here has been fully consummated and completed in all of its parts cannot be in furtherance of such scheme, within the intent and meaning of section 215, supra. McNear v. United States, 10 cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861, 96 A.L.R. 889; Merrill v. United States, 9 Cir., 95 F.2d 669; Stewart v. United States, 8 Cir., 119 F. 89.
The government contends very earnestly that the scheme charged in the indictment necessarily contemplated the recording of the assignment in the office of the Commissioner of Public Lands; that appellant intended to deliver the agreed title, that is, a lease assignment properly approved by the commissioner and recorded in his office; and that the mails were used to accomplish that part of the scheme. An entirely different situation would be presented if» the indictment charged in any form that the scheme included the approval and recordation of the assignment. But in charging the nature of the scheme, the indictment was utterly silent in‘that respect. It therefore cannot be said that approval and recordation were necessarily a part of the scheme, and that the mails were used in furtherance of that part. To so hold would be the equivalent of reading language into the indictment. The rule of general approval that all parts of an indictment should be taken into consideration and that it should be reasonably construed does not warrant a court in supplying omitted language which is essential to a necessary element of the offense.
The government seeks to invoke the rule that the sending of a so-called lulling communication through the mails after the victim has parted with money or something else of value constitutes an offense within the statute. Preeman v. United States, 7 Cir. 244 F. 1, certiorari denied 245 U.S. 654, 38 S.Ct. 12, 62 L.Ed. 533; Newingham v. United States, 3 Cir., 4 F.2d 490, certiorari denied 268 U.S. 703, 45 S.Ct. 638, 69 L.Ed. 1166; Lewis v. United States, 9 Cir., 38 F.2d 406; Bogy v. United States, 6 Cir., 96 F.2d 734, certiorari denied 305 U.S. 608, 59 S.Ct. 68, 83 L.Ed. 387; Creech v. Hudspeth, 10 Cir., 112 F.2d 603. That rule has appropriate application where the indictment charges a continuing scheme and the communication is transmitted by mail during its existence, or where the indictment charges a scheme which contemplates and consists of several parts and the mails are used in furtherance of it before it is fully completed. Cf. Corbett v. United States, 8 Cir., 89 F.2d 124. But, repeating, this indictment did not charge such a scheme. Neither did it charge as a part or element of the scheme that appellant would lull the victim by causing her to mail the assignment for approval and recordation, or otherwise. The scheme, as laid in the indictment, had been fully consummated and completed in all its parts before the mails were used. It therefore is manifest that the rule which brings the mailing of a lulling communication within the statute has no application here.
The judgment is reversed and the cause remanded.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
songer_counsel2
|
E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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
BURKA et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 6020.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 12, 1950.
Decided Jan. 28, 1950.
Bert B. Rand, Washington, D. C, for petitioners.
Francis W. Sams, Special Assistant to the Attorney General (Theron Lamar Caudle, Assistant Attorney General; Ellis N. Slack, Lee A. Jackson and Virginia H. Adams, Special Assistants to the Attorney General, on brief), for respondent.
Before SOPER and DOBIE, Circuit Judges, and WARLICK, District Judge.
SOPER, Circuit Judge.
The petitioning taxpayers were equal partners in a laundry business in Washington, D. C. during the taxable year 1944. They seek a review of a determination of deficiencies in income tax growing out of a finding that the distributable net income of the partnership for the year should be increased by the sum of $12,508.93.
During the year 1944, the business of the laundry grew rapidly and the books of the firm were not accurate or complete, but were in a state of great confusion. Accordingly, the firm employed a certified public accountant in the fall of the year and' turned over to him its available records which included bank books, cancelled checks and sales sheets. The accountant endeavored to reconstruct the income for the first ten months and introduced standard accounting practices for the balance of the year. In reconstructing the income for the period from January 1 to October 31, he assumed that the gross bank deposits represented sales and the gross bank disbursements represented expenses of the business which he endeavored to allocate to running expenses, drawing or capital items.
The trial balance of October 31, 1944, stated by the accountant, showed “unrecorded expense” of $12,463.93. This amount, plus $45 listed as contributions, makes up the deficiency. The larger bills during the year were paid by check but the smaller bills for supplies, gas, oil and lost laundry were paid in cash by one or another of the partners. Some of these items, but not all of them, were recorded 9n the reverse side of sales sheets which were prepared by six or seven different employees who were changed from time to time during a rapid turnover. These notations amounted to $6,368.12 during the five months prior to October 31. There were no such notations on the sales slips for the first five months of 1944. To meet this situation the accountant in his endeavor to show the true income of the firm set up an account which he designated “unrecorded expense.” He credited this account with the sum of $500 representing checks marked petty cash, but not broken down as to items, $595.81 representing checks marked supplies for rug department not used in 1944, and also the above sum of $6,368.12 making a total of $7,463.93. He also concluded that similar expenses must have been incurred, although not recorded, during the first five months, and he credited the additional sum of $5,000 to unrecorded expenses for this period. Accordingly the trial balance for October 31, 1944 showed the item of $12,463.93 for unrecorded expense; and since the accountant concluded that these expenditures were made from unrecorded cash receipts, it was necessary for him to increase the sales by a corresponding amount on the balance sheet.
When the accountant made his trial balance for December 31, 1944, he decided that he had been wrong in arbitrarily estimating the unrecorded expense as $5,-000 for the first five months since there were no supporting records and accordingly he eliminated the $5,000 item of unrecorded expense and the corresponding $5,000 credit to sales.
The Commissioner accepted the conclusions of the accountant that the income of the partnership should be increased by the sum of $12,463.93 since the evidence indicated that this amount had been expended and must have been derived from the un-deposited cash receipts of the business; but the Commissioner rejected the accountant’s conclusion that this sum represented deductible expenses of the business. He disallowed these deductions since they were not accurately recorded or supported by the evidence and could have included withdrawals by the partners as well as other non-deductible items.
The Tax Court refused to disturb the Commissioner’s determination. It pointed out that the taxpayers failed to produce their vouchers or even the accountant’s work sheets and that the conclusions of the accountant were based upon estimates rather than reliable records. For example, the accountant made journal entries on the books of the firm indicating that the unrecorded expense for the five months ending October 31, in the sum of $7,463.93 was made up of $1,000 for payment of claims, $2,000 auto expenses, and $4,463.93 for supplies; but, it was conceded, these sums were mere estimates on the part of the accountant and that there were no vouchers or listings of any kind to support the entries.
We are in accord with these conclusions. The Commissioner’s disallowance of the deductions was presumptively correct and the burden was on the taxpayers to overcome it. Their evidence, however, shows that they failed to keep an adequate account of their receipts and disbursements as contemplated by Section 54(a) of the Internal Revenue Code, 26 U.S.C.A. § 54 (a), and that in consequence their records were in extremely bad shape. Moreover, the taxpayers failed to produce such books and vouchers as they kept or even the accountant’s work sheets, and failed to give a satisfactory explanation of the absence of these records. The Commissioner was therefore at liberty to resort to the best procedure available under the circumstances in making his determinations, and to adopt the method used by the taxpayers’ accounting in arriving at the amount of the gross income; Kenney v. Commissioner, 5 Cir., 111 F.2d 374; but the Commissioner was not bound to adopt the accountant’s conclusion that the unrecorded expense represented deductible items. The amount of the unrecorded expense and its proper allocation were the result of the accountant’s estimates and neither the Commissioner nor the court was obliged to accept this estimate or to give credit to the testimony of the taxpayers which was likewise unsupported by detailed records. It is true that the Tax Court may not arbitrarily reject well substantiated testimony; but it is not bound to accept the estimates of interested witnesses under such circumstances as prevail in this case. Greenfield v. Commissioner, 4 Cir., 165 F.2d 318, 319.
The decision of the Tax Court is therefore
Affirmed.
Despite these disallowances, the petitioners were allowed deductions in the sum of $16,000 for supplies. $1,200 for auto expenses and $1,000 for the payment of claims.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_appel1_7_5
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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 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).
ANGILLY v. UNITED STATES et al.
No. 54; Docket 22445.
United States Court of Appeals Second Circuit.
Argued Oct. 17, 1952.
Decided Nov. 7, 1952.
,, , „ _r , Matthew E McCarthy New York City, for William C. Angilly, plaintiff-appellant.
Myles J. Lane, U. S. Atty., New York City, John M. Foley, Asst. U. S. Atty., New York City, of counsel, for United States and Harry M. Durning, as Collector of Customs, Port of New York, defendants-appellees.
Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
On October 28, 1949, William C. Angilly, the plaintiff-appellant, a custom inspector stationed at LaGuardia Field, New York City, was summoned to a hearing at the Custom House, New York City, and orally charged with illegally withholding $152.44 in customs duties which he had collected and with withholding thirty-eight collector’s copies of informal customs entry forms pertaining thereto, covering a period from May 10, 1948 to September 20, 1948. ». ,, , - ,, , • ,.££ . , At the hearing, the plaintiff was required . ,, i , ,, to answer the charges and the answers were recorded. On November 16, 1949, the Collector of Customs of New York served the plaintiff with written charges setting forth the withholding of the customs duties and entries. On November 21, 1949, the plaintiff replied to the charges in writing, stating that the customs duties and entries were missing because of the prevailing loose practice of the government in the handling of such funds and entries at La Guardia Field. On November 29, 1949, the Plaintiff was summoned to another hearing but was n(? Permitted to have counsel, or t0 have otber customs inspectors as wit-nesses m order t0 establlsb ^alleged prevailing loose practice. On December 30, ... , , , 1949, plaintiff was removed by the Secretary of the Treasury from federal employment for withholding the funds and entrieS) and ^ sum of $1S2-44 was de, ducted frQm his accumulated salary.
Thereafter he brought this action in the district court seeking: (1) A judgment in the sum of $9,184 for loss of earnings; (2) A mandatory injunction directing Durning, the Collector of Customs, to remove all charges and accusations on file in the defendant>s office affecting the plaintiff and informing the Civil Service Commission of such action; (3) A declaratory judgment decIaring the action of Burning as Collector of Customs in making criminal charges against the plaintiff and finding him guilty thereof to be illegal and void; (4) An order directing Durning as Col-lector of Customs to summarily reinstate plaintiff in his position as an inspector and pay all back wages which had accrued, tog-ether with the sum of $152.44 deducted from his earned wages,
. .... Tbe dlStnCtj: Wdge granted the defendants motion for a dismissal of the com-...... , plaint for failure to state a cause of action, . __ ’ ' *’ ‘ UPP’
The requirements of the applicable stat-ute, 5 U.S.C.A. § 652 and regulations, 5 C.F.R. § 9.101 and § 9.102, which are set forth in the margin in so far as here relevant were -clearly met. Even if in a case, involving serious charges it might have been desirable to give the employee an opportunity to produce witnesses, the statute has made this purely discretionary with the hearing officer. The claim of the plaintiff that his written answer was not considered seems quite meaningless. The defendants not only received the plaintiff’s written defense, but granted him an opportumty to present his defense orally. ‘
Plaintiff’s further contentions >hat he was deprived of property without .due process of law, and of the right to trial by jury, are both negatived by the decision of Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, which was affirmed by the Supreme Court — though the justices were evenly divided, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352. See also Carter v. Forrestal, 86 U.S.App.D.C. 53, 175 F.2d 364. The suggestion in the Note in the Flarvard Law Review, 65 Harv.L.R. 156-8, to the effect that the plaintiff’s reputation is “property” within the. meaning of the Fifth Amendment is not in our opinion to be seriously weighed against the long established view that a civil service employee does not have a constitutionally protected right to his office. Cf. Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 1009, 44 L.Ed. 1187.
The only jurisdiction for the reC0very of salary is vested in the United States Court of claims. 28 U.S.C. § 1346(d). The plaintiff’s claim for loss of earnings appears to us to be within the statute. Moreover, the district court has no power to reinstate the plaintiff who here was removed by the Secretary of the Treasury and can only be reinstated in a suit in the District of Columbia to which the Secretary would be a necessary party. See Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95.
For the foregoing reasons the order and judgment below are affirmed.
. “§ 652. Removal without pay from olassified civil service — Only for cause; notice; copy of charges; time to answer; examination; record; persons exempt.
“(a) No person in the classified civil service of the United States shall be removed or suspended without pay therefrom except for such cause as will promote the efficiency of such service and for reasons given in writing. Any person wfiose removal or suspension without pay is sought shall (1) have notice of the same and of any charges preferred against him; (2) be furnished with a copy of such charges; (3) be allowed a reason-able time for filing a written answer to such charges, with affidavits; and (4) be furnished .at the earliest practicable date with a written decision on such answer. No examination of witnesses nor any trial or hearing^ shall he required except in the discretion of the officer or employee directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, the reasons for removal or suspension without pay, and the order of removal or suspension without pay shall be made a part of the records of the proper department or agency, as shall also, the reasons for reduction in grade or compensation; and copies of the same shall be furnished, upon request, to the person affected and to the Civil Service Commission. This subsection shall apply to a person within the purview of section 863 of this title, only if he so elects.”
“§ 9.101. Agency responsibility for separation or demotion of employees. ía) The employing agency shall remove, demote, or reassign to another position any employee in the competitive service whose conduct or capacity is such that his removal, demotion, or reassignment will promote the efficiency of the service. * * * ”
“§ 9.102. Procedure in separating, suspending, or demoting permanent and indefinite employees.”
“(1) Actions against employees. No employee, veteran or nonveteran, shall be separated, suspended, or demoted except for such cause as will promote the efficiency of the service and for reasons given in writing. The agency shall notify the employee in writing of the action proposed to be taken. This notice shall set forth, specifically and in detail, the charges preferred against him. The employee shall be allowed a reasonable time for filing a written answer to such charges and furnishing affidavits in support of his answer. He shall not, however be entitled to an examination of witnesses, nor shall any trial or hearing be required except in the discretion of the agency. If the employee answers the charges, his answer must be considered by the agency. Following consideration of the answer, the employee shall be furnished at the earliest practical date with a written decision. If the agency determines that removal or other action is warranted, the enrployee shall be notified in the decision of the reasons for the action taken and its effective date. Copies of the charges, notice of hearing (if any), answer, reasons for removal, or other action, shall be made a part of the records of the department or agency concerned. * * * ”
. “(d) The district courts shall not have jurisdiction under this section of:
“(1) * * *
“(2) Any civil action or claim to recover fees, salary or compensation for official services of officers or employees of the United States.”
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:
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songer_weightev
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
WESTERN UNION TELEGRAPH CO. v. WILCOX et al.
No. 10555.
Circuit Court of Appeals, Eighth Circuit.
Aug. 7, 1936.
Ralph T. Finley and Lon O. Hocker, both of St. Louis, Mo. (James C. Jones and Frank H. Sullivan, both of St. Louis, Mo., Francis R. Stark and Robert C. Barnett, both of New York City, and Jones, Hocker, Gladney & Jones and Sullivan, Reeder & Finley, all of St. Louis, Mo., on the brief), for appellant.
James L. HornBostel, of Jefferson City,. Mo. (Roy McKittrick, of Jefferson City, Mo., on the brief), for appellees.
Before STONE, WOODROUGH, and THOMAS, Circuit Judges.
WOODROUGH, Circuit Judge.
The Western Union Telegraph Company brought this suit in equity against members and the secretary of the Missouri state tax commission and the state auditor to enjoin the certification to the various counties in the state for taxation purposes of an alleged excessive and discriminatory assessment of the company’s property as of June 1, 1932. Injunction was denied after trial of the issues in the District Court, and the company has appealed. Diversity of citizenship and jurisdictional amount in controversy were shown; also want of adequate remedy at law; and no question is presented here as to the form of the suit or the sufficiency of the petition.
It appears that under the laws of Missouri the state tax commission is charged with the duty of originally assessing for taxation the property of telegraph companies such as the plaintiff on the basis of its true value in money in the same proportion as other property is assessed; said assessment being subject to equalization by the state board of equalization. The telegraph company pleaded that, although the true value of its property within the state did not exceed the sum of $4,300,000, the tax commission, at first tentatively and then, after a hearing and the introduction of evidence, finally assessed its property in Missouri in the sum of $6,556,192, which assessment the state board of equalization, after hearing, refused to reduce. Plaintiff alleged further: “That in valuing the plaintiff’s property and equalizing said assessment, said Tax Commission and Board of Equalization, under the law and in accordance with the settled practice and custom of said Commission and Board, were required to determine the value of plaintiff’s property in the State of Missouri by taking such percentage of the total value of the plaintiff’s property within and without the State of Missouri as the total mileage of the plaintiff’s poles and wires in the State of Missouri bore to the total mileage of the plaintiff’s poles and wires within and without the State of Missouri”; that, “Within the time required by the laws of the State of Missouri, the plaintiff filed * * * a statement, duly subscribed and sworn to, * * * which statement set out the kind of property composing plaintiff’s telegraph system in the State of Missouri * * * and also the number of miles of poles and miles of iron and copper wire in said State * * * ”; “that from the statements filed by the plaintiff, aforesaid, and evidence offered before said Tax Commission, said Commission had before it the facts showing the total property owned by the plaintiff within and without the State of Missouri, including the total mileage of poles and wires within and without the State of Missouri, and the total cost thereof, the average cost per mile of various kinds of property, such cost less depreciation, together with earnings of the plaintiff’s property prior to such assessment, as well as the market value of its outstanding stock and bonds, over a reasonable period of years prior to such assessment”; “that in making and approving the said assessment of $6,556,192.00, the said (Tax) Commission and- Board of Equalization deliberately, intentionally and arbitrarily grossly overassessed the plaintiff’s said property to the extent that the said assessed value was fixed in excess of $4,300,000.00, by deliberately, intentionally and arbitrarily basing said assessed value upon a cost basis alone, in total disregard of the earning power of plaintiff’s said property and the true value in money of its said property; that the valuation of plaintiff’s said property fixed by said Commission and approved by said Board of Equalization is not supported in any manner by any representative method or basis of valuation; that to arrive at any value of said property in excess of $4,300,000.00, said State Tax Commission could only have gróssly overassessed the plaintiff’s property in Missouri or considered valuations of plaintiff’s property outside of the State of Missouri, not legally forming a part of plaintiff’s property within said State; that in so valuing the plaintiff’s property, and in basing its valuation upon cost alone, and disregarding the earning power and the market value or true value in money of plaintiff’s said property, the said Commission and Board of Equalization proceeded upon a fundamentally wrong theory of valuation, for all of which said reasons the amount of such valuation in excess of $4,300,000.00 constitutes a fraud against this plaintiff, and deprives and will deprive the plaintiff of its property without due process of law,” “and denies to the plaintiff the equal protection of the laws.”
The plaintiff further alleged “that while intentionally, deliberately and arbitrarily assessing the plaintiff’s property, as aforesaid, as of June 1, 1932, for the taxes for the year 1933, grossly in excess of its true value, as aforesaid, and upon such fundamentally erroneous basis of valuation, the said State Tax Commission and State Board of Equalization deliberately, intentionally and arbitrarily fixed, approved and equalized the assessment of all other property in the State of Missouri, for the same year, in the same class for the purpose of taxation, at not to exceed eighty per cent, of its true value in money; that such action by said taxing authorities was and is a discrimination against, and a fraud upon, the plaintiff * * * ” And more particularly it was alleged that real estate and personal property were underassessed at 65 per cent, of true value and that flat reductions were made in the assessment of real and personal property, especially upon flat rates of value for livestock on account of the financial depression since 1929, and that all such underassessment has been so open and notorious that the same has developed into a well-established practice and custom of underassessment.
These claims were put in issue by the answer of the defendants, and on the trial of the case-a member of the state tax commission, Mr. A. J. Murphy, who had participated in making the assessment complained of, testified as a witness for the defendants, and narrated in detail how the assessment was arrived at and made by the board. The contentions argued in this court can be more readily introduced by a consideration of Mr. Murphy’s account of the making of the assessment.
Mr. Murphy said that the sworn return of their properties to the tax commission was supposed to be filed by the public utilities before the end of the year (in this case 1932), and the board passes on it in the spring of the following year or sometime in the summer. In its return for the tax year in question the company omitted to report certain properties amounting to around $800,000 which it had always included in the reports in previous years,' and it also claimed greatly reduced values, so that upon the face of its return its assessment would be much less than it had been. Accordingly, a study was made by Mr. Murphy, not only of the returns made by the company to the tax authorities in Missouri, but of its reports to the Interstate Commerce Commission, the. Missouri Public Service Commission, and to stockholders. Mr. Murphy prepared tables showing what the assessments of the Western Union property had been in the state of Missouri over a number of years. The assessments from 1921 to 1931 were as follows:
1921 $5,470,540.00
1922 5.724.447.00
1923 5.499.156.00
1924 5.865.121.00
1925 5.851.999.00
1926 5.840.633.00
1927 5.853.930.00
1928 5.918.248.00
1929 5.893.139.00
1930 5.955.751.00
1931 5.955.653.00
It appeared that in a period between 1926 and 1931 the property of the company, as assessed in Missouri, had only been increased $115,000, whereas the reports of the company filed with the Public Service Commission of Missouri showed that in the five-year period from 3928 to 1932 the increase of the company’s book value of plant and equipment was $69,161,168. There was nothing in the reports made by the company to the taxing authorities of Missouri from year to year showing increased valuations except that some increase of mileage of wires and poles was indicated. Examination of the returns made by the telegraph company to the taxing authorities in Missouri disclosed that the company did not report the number of miles of wire owned or operated by it in the state of Missouri or in the United States, so that, although Mr. Murphy deemed the pole and wire mileage comparison proper for state allocation purposes, no such allocation could be made from the returns made to the Missouri taxing authorities. Mr. Murphy said: “We were trying to arrive at a correct value of the properties using * * * whatever information we could get. * * * We had copies of their annual reports to the stockholders and in reading these reports we discovered that in this ten years in which we had not been increasing their assessment in Missouri they say their property has increased' 83 per cent. They did not say what kind of property hut we had information enough to know it was' similar property to that in Missouri, poles and wires and telegraphic instruments.” The company’s reports showed that “the new construction for the six years (1928-1932) * * * added to plant and equipment were: Poles $26,802,109.00; wires, $13,-548,031.00; aerial cable, $2,751,825.00; underground cable, $4,486,269.00; conduit $3,948,976.00; pneumatic tubes $1,677,804.-00; telegraphic equipment, $21,340,090.00; total additions to assets $113,232,321.00.” “We were trying to make up our minds whether this property (the telegraph company’s) should be worth more, * * * we examined their annual report and find that the company’s annual report for the fiscal year 1931 says ‘the company’s property has been expanded and intensively developed to keep pace with the growing demand for better and faster telegraph service. Additions and betterments to the plant during the twenty years ending 1931 aggregated $193,335,000.00.’” It also appeared in the reports to stockholders for 1931 that the taxes of the company throughout the United States generally were double those of ten years ago, whereas the property account had increased only 83 per cent.
With this and other information in hand, Mr. Murphy prepared tables of computations of the company’s property values and pole and wire mileages to arrive at a valuation for the assessment. He testified that in reaching the valuation upon which the assessment was made the commission did not'adopt the reproduction cost new less depreciation basis nor any other one theory. In response to the question propounded by the court to Mr. Murphy: “How did you arrive at your assessment?” Mr. Murphy said: “We arrived at that originally by the first method that I talked to you about, the reproduction cost new, comparing that with the earning statement at that time as we knew it and the sale of their securities as we knew it at that time. That was a fair average of the three methods there. The average on plans 1, 4, and 5, that is the reproduction cost new, total net income and sale of securities, which we think are the fa-ir methods. The average of those three is $6,897,350.00.” (The assessment being $6,556,192.)
Although Mr. Murphy did not testify that he was an accountant, his testimony reflects that he was competent to and did make comprehensive studies of the company’s properties from the sources referred to by him.
On the trial Mr. Murphy submitted tables which contained the figures in detail to reflect computations made according to each method employed to arrive at the value of the company’s property in Missouri. The tables so presented on the trial were not those originally compiled by the commission prior to the assessment. Mr. Murphy says: “We made tables in the light of more recent information which we” are submitting. “After this suit came up we had to make further investigation, that is the company did. The company revised their estimates. Every time they revised their figures we would have to revise ours; we would get some additional information.” The tables of computations, submitted by Mr. Murphy and received in evidence, show the valuation of the plaintiff’s property of June 1, 1932, by five different methods, summarized as follows:
(1) Reproduction Cost New Less 15% depreciation Plus 8% Going Value $7,-997,761 — $1,999,664 equals $6,792,007 plus $543,360 equals $7,335,367
(2) Prorated Book or Cast Value $9,930,871 —15% Dep. $1,489,620 equals $8,441,-241 plus 8% equals 9,116,540
(3) Plant Capitalizing Earnings over a 5-year term at 6% return equals 5,917,607
(4) Capitalizing Total Net Income at 7% 1928-1929-1930 and 6% 1931-1932 6,473,571
(5) Sale of Securities equals 6,883,113
Average of all 5 valuations $7,145,239
Assessment 6,555,690
Average of 1-4-5 6,897,350
Valuation on Cost of property*! less Depreciation plus going value * which is valuation used in the ^Equals 9,116,540 assessment of land, Town lota, and most property J
Assessment $6,555,690
72%
Voluminous testimony offered for the company was to the effect that the computations as made for the Board upon each of the several identified methods of estimating values were erroneous, that the conclusions arrived at were wrong, and that the true value of the company’s property in Missouri was only a fraction of the assessment.
On the issue of discrimination Mr. Murphy testified that the practice of the tax commission was to “make a map showing each county in the state and we put down in red ink on this map (over each county) the last previous assessment confirmed by the State Board of Equalization which, in this case is 1932, which was the assessment for 1931. Then we put a second figure in black ink, the average assessment per acre of farm land returned from each county. * * * After this map has been completed and other assessments arrived at rby the County Assessor and certified to by the Tax Commission, the Tax Commission reviews these assessments, compares the assessments with the previous year and gets these maps for probably two or three years back and sees what the general tendency in each county has been, whether it is up or down. We compare the assessment in each county (with the assessment) on lands of the surrounding counties and if we find a discrepancy or if our other information leads us to believe that any of the figures returned by the assessors are too high or too low, we increase it or decrease it and make this third set of figures which is the valuation arrived at by the Tax Commission. Then, wp certify these up to the State Board of Equalization who make an additional finding and their finding is the fourth figure on these maps which is the final assessment for the state.” In answer to the question: “Mr. Murphy, I will ask if the Tax Commission intentionally assessed the property of the plaintiff at more than its true value and other.property in the state at less than 100% of its true value in money?” Mr. Murphy answered: “No.”
The plaintiff called some fifty-odd witnesses who gave testimony tending to show that real and personal property in the state was assessed below its true value and that there had been flat reductions in the assessments upon certain classes of personal property, notably, livestock and bank stock. Many witnesses called for the defendants gave testimony tending to show that property values in Missouri had gone down much faster than taxing officers had reduced assessments, so that in the tax year in question assessed values tended to approximate closely to real values in money.
Neither of the parties made any request to the court to find specially upon any of the very numerous fact disputes developed in the large volume of testimony, and the court accordingly declared briefly and generally that it could not be found as a fact that the fair value of the plaintiff’s property as of June 1, 1932, was less than the amount at which it was assessed; nor that there was any intentional, deliberate, or arbitrary overassessment of plaintiff’s property; nor that the assessment of other property in Missouri “was not at the true value in money of that property”; and the court found “that there was no intentional deliberate nor arbitrary discrimination against the plaintiff by assessing its property at a different or higher percentage of its true value in money than the percentage of value at which other property in Missouri was assessed in 1932.” The court, accordingly, dismissed the bill.
On this appeal the contentions of the appellant relate, first, to its claim that its property was overassessed, and, second, to the claim of discrimination on account of the alleged failure to equalize the plaintiff’s assessment on the same basis of valuation as the great mass of other property in the state.
Overassessment.
As to the overassessment of the property, it has been argued for appellant that the assessment here assailed was not arrived at by the tax commission upon consideration of computations made in accordance with the several theories of valuation testified to by Mr. Murphy, but that it was, in fact, made arbitrarily by wrongfully including certain locally assessable properties and other property outside the state at grossly excessive prices and then resorting to computations merely to check or justify what had been wrongfully done. It is claimed that a so-called “work sheet” produced from the files of the commission (Exhibit, 17-A) and the testimony concerning the same would so indicate. The exhibit referred to includes an item “Other Equipment, $1,498,764,” and it is argued that the property referred to in this item was in part property that was outside of the state and that another part, amounting to at least $1,000,000, was inside of the state but locally assessable and not subject to assessment by the tax commission. On stridy of the testimony relative to this controversy, we have concluded that it was not established that the identified work sheet was intended to or did set forth the elements upon which the assessment was based by the tax commission. We have concluded that we should give credence to Mr. Murphy’s statement that the assessment was reached originally by the commission upon consideration of the several methods of computation and the combination thereof as described by him.
The appellant has also presented that the commission followed fundamentally erroneous methods to compute the value of plaintiff’s property as argued in the following contentions, which we will number, epitomize, and discuss:
1. That in its valuation upon the reproduction cost new basis the commission wrongfully included an arbitrary item of 8 per cent, for franchise or going value, amounting to $300,000.
2. That the commission included personal property to the extent of at least $1,-000,000, which was assessable by the assessors in the local subdivisions of the state and not by the state tax commission.
3. That the commission based its valuation upon book values without adequate allowance for depreciation and without due consideration of actual values, wrongfully taking (in part at least) an average value over a period of years.
4. That in its valuation by capitalization of earnings, (a) a five-year average was wrongfully taken; (b) expenses of rent on lease lines were not deducted; (c) the commission capitalized earnings on the basis of 6 per cent, instead of 7 or 8 per cent.
5. In its valuation on the sale of’ securities basis of computation the commission (a) wrongfully used a five-year average of sales values; (b) it wrongfully added stocks and bonds which plaintiff had purchased amounting to about $1,765,550; noninterest-bearing liabilities, about $13,-000,000; premiums on stocks, about $1,-163,350; and bonds owned by plaintiff and deposited as collateral for loans, $3,143,000.
1. Going Value. In estimating the value of the company’s property upon the basis of reproduction cost new less depreciation, the Board, after, deducting 15 per cent, depreciation from the' gross valuation, added to the depreciated figure an amount equal to 8 per cent, thereof as going value. Later, when the tables showing the five different methods of estimating values had been compiled, the' same addition of 8 per cent, upon the depreciated valuation was made by Mr. Murphy in reaching his valuation by his so-called prorated book or cost value. Mr. Murphy said: “In some of these computations there is an 8 per cent, going value as a part of the real value of the property. It was added, however, after taking off depreciation.” “The theory of going value is this: that in a property of this kind, spread out over the United States, that it would take at least five years to build, that you would incur three or four years taxes, interest, and everything on your securities before you get to earning a cent. You are attempting to establish the value of it at the present time. * * * So I think that is a proper element to be taxed. We assess similar values on every utility in the state. * * * Always have.”
The reasons upon which it has been found necessary in estimating the value of properties like the plaintiff’s to make an addition on account of going value have been explained and upheld by the courts in numerous cases (see Los Angeles Gas & Electric Corp. v. Railroad Comm., 289 U.S. 287, 313-319, 53 S.Ct. 637, 77 L.Ed. 1180); and we do not find fundamental error, illegality, or fraud in the addition made under the item “Going Value.” Great Northern Ry. Co. v. Weeks, 297 U.S. 135, 139, 56 S.Ct. 426, 80 L.Ed. 532; Rowley v. Chicago & N. W. Ry. Co., 293 U.S. 102, 109-111, 55 S.Ct. 55, 79 L.Ed. 222; Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, 28, 52 S.Ct. 48, 76 L.Ed. 146; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 245, 52 S.Ct. 133, 76 L.Ed. 265; Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340, 28 A.L. R. 979.
2. Property Claimed to be Locally Assessable. Two assignments of error and considerable portions of appellant’s brief and reply brief relate to its second contention above stated to the effect that certain property included by the Commission was locally assessable property. There is no competent evidence to establish that the property referred to in this contention ever was actually assessed by local assessors in the state or that there was a double assessment thereof by local and state assessing officers. Mr. Meigs, testifying for the telegraph company, says that “he had been told that the elements of value enumerated” had been locally assessed and that “he had been told that the reason for not including them in the returns of the company for the year in controversy was that he had been so told by Mr. Whitney, now deceased, who was tax attorney.” Whether any of the company’s property was in fact being doubly assessed, once by local assessors in the counties and again by the state tax commission, was a matter very easy of ascertainment and demonstration by the company. The Missouri statute (section 9764, R.S.Mo.1929 [Mo.St.Ann. § 9764, p. 7880]) requires the company to make a sworn return to local assessors of any of its property which is locally assessable, and no such local returns are shown. Mr. Murphy testified: “I want to say further that there is a blank sent to them (the telegraph company) to make a return of their property in each county in the state and each taxing subdivision. They reported nothing on those blanks, except the number of miles of wire and number of miles of poles. They did not give us a list of any other property in those counties or taxing subdivisions.”
Neither did the company plead that the tax commission had committed the wrong now complained of. Its pleading was, as stated, that the tax commission had arrived at its excessive assessment by other means specifically set out, not including double assessment by local officers and by state officers. The pleading referred to is the amended petition which the plaintiff was permitted to file after all of the testimony had been taken on the trial. Nor does the record disclose that this contention now seriously urged upon us was presented to the trial court. Undoubtedly the great bulk of locally assessable property belonging to the telegraph company in Missouri is in St. Louis, where it has valuable land and buildings and equipment. Mr. Murphy was very positive that those were not included in his calculations. He testified: “In making these computations I did not count in the buildings and land. * * * I eliminated those * * * they were deducted as noil-distributable property. What we recognize as and what the law recognizes as non-distributable property is lands, buildings. * * We did not include these in this calculation.” lie said that he had only included “distributable property” in his calculations and that such property was properly assessable by the state tax commission rather than by the local assessors.
Because it has been urged upon us with earnestness we have given this contention of the appellant careful consideration, but we conclude that it should not be sustained.
3. Book Values — Depreciation. The appellant pleaded and has contended upon elaborate analyses of all relevant computations and figures that the commission gave undue weight to book' values. Its argument establishes that in the depression tax year in question book values were not an accurate criterion of true value, and undoubtedly, if it could be proven that the assessment was merely the book value in that year, that would present “a fundamentally wrong theory” of valuation.
At the opening of the trial counsel for the telegraph company said: “There is no dispute about the reconstruction costs new in any value of the physical plant. There is no contest but that that is correct.” There were disputes as to what items should be properly included. The company submitted four different reports of its reproduction cost new as of June, 1932. Report No. 1 was submitted in 1932 and withdrawn because of errors. Report No. 2 was submitted in January, 1933. Report No. 3 was submitted in depositions taken by appellant in New York after institution of this suit. Report No. 4 was submitted when the case was being tried before the court. The totals of the reports are as follows:
(The assessment, $6,556,192, is exactly 75 per cent, of the above figure $8,741,589.)
In all of its reports the company took a 30% per cent, depreciation and omitted going value. Reports Nos. 2 and 3 omitted items of property aggregating $885,808 claimed to be nonassessable by the company but which were included in report No. 4, and which the defendants claim should be included. They all also omit additional items amounting to $317,935 of property which had been reported as operative property of the company to the state authorities in previous years and which ought to be included according to the defendants. The estimate of reproduction new less depreciation at 15 per cent., with 8 per cent, going value, arrived at and shown on defendants’ table of computation, was $7,335,367. Recalculation of the defendants’ three methods of computation, 1, 4, and 5, produces the following result when weighted by attributing 20 per cent, to the first method and 40 per cent, to each of the others, as follows:
Value by Reproduction Cost new less depreciation.
Method No. 1 $7,335,367
20% of this value $1,467,073
Value by Capitalization of Net Income
Method No. 4 6,473,571
4C% of this value 2,589,428
Value by Sale of Securities
Method No. 5 6,883,113
40% of this value'2,753,245
Value by Combination of Methods $6,809,746
Appellees’ Assessment 6,555,690
Upon consideration of these tables and the data from which they were derived, we think it cannot be held that the assessment in question was wrongfully rested on book values or on reproduction cost new less depreciation plus going value. The strength as well as the weaknesses of the reproduction cost new less depreciation method of valuation have been recognized and explained by the courts. Cleveland, C., C. & St. L. Ry. Co. v. Backus, 154 U.S. 439, 14 S.Ct. 1122, 38 L.Ed. 1041; Harris Trust & Sav. Bank v. Earl (C.C.A.8) 26 F.(2d) 617, 618; Chicago & N. W. Ry. Co. v. Eveland (C.C.A.8) 13 F.(2d) 442; Northern Pac. Ry. Co. v. Adams County (D.C.) 1 F.Supp. 163, 174, 175, 190, 191; See Standard Oil Co. v. So. Pac. Co., 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890. But it is an allowable method of estimating values, providing undue weight is not accorded to it. In the computations above set forth, a weight of only 20 per cent, has been accorded, and the resultant figures do not show a grossly excessive or arbitrary assessment was arrived at.
Neither do we sustain, the contention of the appellant that the only allowable depreciation was 30½ per cent. It would appear that, in view of the reports made by the company concerning the condition of the property, a less percentage could lawfully be taken for depreciation. Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 151, 54 S.Ct. 658, 78 L.Ed. 1182. We have not overlooked the testimony of Mr. John B. Campbell, called as a witness on rebuttal for the telegraph company, who testified, among other things, that, as a stockholder in the company, he had received no dividends for several years and that the company’s properties in Missouri were depreciated on the average of about 50 per cent. Other testimony reflects that dividends have been earned on the stock of the company continuously since 1870, and that the lesser rate of depreciation was not improper.
4. Capitalization of Earnings. Mr. Murphy prepared several tables reflecting an estimate of the value of the company’s property in Missouri according to the capitalization of earnings method, always taking averages over a five-year period, and appellant complains that it was fundamentally erroneous to use a five-year period in computing under this method. The evidence is that the earnings of the company were at the lowest point in the tax year in question, and it is argued that, as the only value in the company is its power to earn, when its earnings fell its value for taxing purposes should be reduced to the same low level. We think it was necessary for the commission to consider the reduced earnings, but we do not agree that, because the net earnings fell to little more than a third of what they were in 1928, the assessment should be reduced to the same extent. The long-maintained stability of the company cannot be disregarded, and it was not fundamentally erroneous to consider the five-year average in the computation. Great Northern Ry. Co. v. Weeks, 297 U.S. 135, 149, 56 S.Ct. 426, 80 L.Ed. 532; Rowley v. Chicago & N. W. Ry. Co., 293 U.S. 102, 105, 55 S.Ct. 55, 79 L.Ed. 222.
In making the computation in one of the tables presented by him, Mr. Murphy capitalized net income of the system at the rate of 7 per cent, per annum for the three years 1928, 1929, and 1930, estimating the values at $319,190,540 for 1928, $330,542,-858 for 1929, and $282,528,985 for 1930, but for the two years 1931 and 1932 the valuation on this basis fell to $242,418,566 and $126,566,800 respectively upon a 6 per cent, capitalization used for those years. The appellant complains that there was fundamental error (among other things) because in making the computations the item of “expenses on rent of leased lines” was not deducted. The experts for the company claimed large deductions by reason of the rent items.
On this issue Mr. Murphy testified that the reports of the company reflected that the company leased about 15 per cent, of the total wire which it used in the system and that it paid large sums for rent on the leased lines — about three and a half million dollars in the year 1928, for instance. It appears that the company had very little leased plant or equipment in Missouri, and Mr. Murphy testified that this fact had to be taken into consideration in making the computation of value upon the capitalization of earnings method used to make up the table on that basis. He pointed out that, unless the item of rent from leased property was treated the way he treated it, an unfair reduction of the value to be allocated to Missouri would result. He testified: “They pay three and one-half million dollars rent on that 15 per cent, of their wire,” and he said: “We take it (the item of rent) off after we determine the earnings of the entire wire mileage. Then you pay it, but it is not a proper deduction before you determine the earnings of your entire system.”
The real inquiry of the commission was as to the result of capitalizing the earnings per mile in order to attribute just value to the miles in Missouri. In Mr. Murphy’s view, Missouri was not concerned that some of the company’s wires in other states were leased and rental paid therefor. As the ultimate allocation to Missouri from all of the computations according to this method was upon the comparison of wire mileages, we are not convinced that the method of computation described and illustrated by Mr. Murphy was fundamentally erroneous in the particular complained of.
Neither can it be said that the 6 per cent, basis used for capitalization of earnings was fundamentally erroneous. Great Northern Ry. Co. v. Weeks, supra.
5. Sale of Securities Method. In estimating the system value of the telegraph company on the sale of securities basis, Mr. Murphy testified that the figures were all obtained from the company’s reports to the Public Service Commission as to quantities of securities, and the sale prices were obtained from letters of the company and from information furnished by the company to the Oklahoma state tax commission. “The prices on the securities which they report agree with our records but there are a number of securities they did not report that we had to get prices on elsewhere.”
The appellants complain that the securities which Mr. Murphy here refers to and which the company did not report ought not to have been included in the computation of value according to the sale of securities method.
It appears that the company carries on its books certain large items as liabilities which are peculiar. One item is carried m its reports at about $13,000,000, another item is “premiums on stocks” about $1,-163,350; “bonds owned by plaintiff and deposited as collateral for loans,”.$3,143,000; and “stocks
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_const1
|
104
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited 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.
Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. FEDERAL CLEARING DIE CASTING COMPANY, a corporation, Mal Coghlan and Michael Coghlan, Defendants-Appellants.
Nos. 80-1241, 80-1613.
United States Court of Appeals, Seventh Circuit.
Submitted Jan. 21, 1981.
Decided July 29, 1981.
Rehearing and Rehearing En Banc Denied Dec. 3,1981.
Robert D. Moran, Washington, D. C., for defendants-appellants.
Thomas L. Holzman, U. S. Dept, of Labor, Washington, D. C., for plaintiff-appel-lee.
Before BAUER, Circuit Judge, KUN-ZIG, Judge, and WOOD, Circuit Judge.
The Government originally brought these cases under the name of Ray Marshall, former Secretary of Labor.
The Honorable Robert L. Kimzig, Judge of the United States Court of Claims, is sitting by designation.
KUNZIG, Judge.
In these consolidated cases, the question before us is whether the district court, 484 F.Supp. 215, properly denied Federal Cléar-ing Die Casting Company’s (Federal) motion to quash an OSHA inspection warrant, simultaneously holding that company in civil contempt for refusing to comply with the warrant (No. 80-1241), and its subsequent granting of certain relief to the Secretary of Labor (Secretary), and denial of Federal’s motion for a new trial (No. 80-1613). Because we find that the OSHA inspection warrant was issued without probable cause, the orders of the district court under review are reversed, and the warrant is dissolved.
I.
On January 10, 1980, United States Magistrate John W. Cooley, upon an ex parte application made on the same date by John Stoessel, an OSHA compliance officer, issued a “Warrant for Inspection” pursuant to the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. §§ 651, et seq. (1976), for an inspection of Federal’s workplace.
Stoessel had applied for the inspection warrant based on two newspaper articles which appeared in the January 9 and 10, 1980, issues of the Chicago Sun-Times. These articles described an industrial accident in which one of Federal’s employees, Natalio Alamillo, allegedly had his hands severed while operating a hydraulic punch press on January 7,1980. In support of the warrant application, Stoessel attached copies of the two articles. Also attached to the warrant application was a seven-page OSHA citation and notification of proposed penalty which had been issued to Federal following inspection of its workplace on September 5, 1975, more than four years earlier. The record is devoid of any evidence to show that OSHA attempted to tie together specifically the old citation and the new accident. As a matter of fact, the application did not even establish the occurrence of an accident; it was based merely upon the existence of the newspaper reports and the 1975 OSHA citation.
On January 11, 1980, Stoessel, accompanied by another OSHA compliance officer, appeared at Federal’s plant to serve the inspection warrant, and to conduct an inspection of the premises to insure compliance with the Act. With the advice of counsel, the company refused entry on the ground that the warrant had been improperly issued. OSHA then petitioned the district court for an adjudication of civil contempt and Federal filed a motion to quash the warrant in the same court. An order of civil contempt was issued on February 20, 1980 by Judge Bua and a hearing for April 3,1980 was scheduled to determine whether sanctions should be imposed on the company for its allegedly contumacious conduct.
During the intervening six-week period, OSHA compliance officers again attempted to inspect Federal’s premises and to talk privately with its employees. Because of certain problems encountered by these officers, OSHA filed an application for sanctions and other relief in the district court on March 31,' 1980. Since Federal’s counsel could not appear at the April 3, 1980 hearing due to a prior trial obligation, Mai Coghlan, a company officer, appeared pro se for the sole purpose of requesting a continuance.
However, at the hearing, Judge Bua agreed only to grant the request for a continuance on the condition that Federal would assure the court that the February 20, 1980 order would be complied with “in every respect.” Consequently, an agreement was entered into by Federal and the Secretary in which the company agreed to cooperate in the inspection of its premises. An order issued that day, April 3, 1980, reflected the essence of that agreement.
On April 11, 1980, Federal moved for a new trial on the grounds that (l) it was denied the right to counsel at the April 3, 1980 hearing and (2) it lacked sufficient time to defend against the March 31, 1980 application for sanctions. On April 14, 1980, Judge Bua denied Federal’s motion for a new trial.
Federal argues that no probable cause existed for the issuance of the OSHA inspection warrant since the Secretary failed to present to the issuing magistrate “specific evidence” of an existing violation. Specifically, Federal contends that the Secretary’s reliance on the two newspaper articles and the 1975 OSHA citation does not satisfy the probable cause standard announced by the Supreme Court in Marshall v. Barlow’s, 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). We agree with Federal.
II.
Section 8(a) of the Act, 29 U.S.C. § 657(a), authorizes the Secretary (or his agents) to inspect the premises of any employment facility within the Act’s jurisdiction. The purpose of such inspections is to search for dangerous work conditions and violations of OSHA regulations. Although no search warrant or other process is explicitly required under the Act, the Court’s decision in Barlow’s makes clear that a warrant, or its equivalent, is. constitutionally necessary to conduct OSHA administrative inspections. Donovan v. Dewey, - U.S. -, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981). See also Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). An OSHA inspection warrant is to issue only upon a showing of some degree of probable cause. As we have recently indicated, “precisely what degree of probable cause is required in particular cases has been the topic of much post-Barlow’s litigation.” Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d 1313, 1316 (7th Cir. 1980). It is clear, however, that “[pjrobable cause in the criminal sense is not required” for the issuance of an OSHA inspection warrant. 436 U.S. at 320, 98 S.Ct. at 1824. Rather, only a flexible, less stringent standard of probable cause need be satisfied.
In Barlow’s, the Supreme Court enunciated two alternative methods by which the less stringent standard of probable cause could be established: (1) if specific evidence of an existing violation was presented, or (2) if a showing was made that reasonable legislative or administrative standards for conducting such an inspection were satisfied. 436 U.S. at 320 — 321, 98 S.Ct. at 1824-1825. Given this standard, the specific question before us is whether an application by OSHA for a warrant to conduct an inspection of a workplace pursuant to a newspaper report and prior OSHA citation meets the probable cause requirements for administrative inspections set forth in Barlow’s. In answering this question, we need only examine the warrant application presented to the magistrate to determine whether probable cause to conduct the inspection existed. Stoddard Lumber Co., Inc. v. Marshall, 627 F.2d 984 (9th Cir. 1980); Weyerhaeuser Co. v. Marshall, 592 F.2d 373 (7th Cir. 1979); In the Matter of Establishment Inspection of: Gilbert & Bennett Mfg. Co., 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979); Pelton Casteel, Inc. v. Marshall, 588 F.2d 1182 (7th Cir. 1978).
III.
In the application for the inspection warrant, the magistrate was provided with the following information;
******
2. The desired inspection is part of an accident investigation occurring at the workplace cited above, as prescribed by Chapter IV, entitled Compliance Programming, of the Occupational Safety and Health Administration Field Operations Manual. The accident involved an employee’s hands becoming trapped in a press on January 7, 1980, and resulted in the amputation of both hands. Copies of news articles excerpted from the January 9 and 10, 1980, editions of the Chicago Sun-Times is attached hereto, made a part hereof, and marked Exhibit A and Exhibit B. The conditions giving rise to the accident indicates the existence of dangerous conditions that may be in violation of the Act and/or the regulations issued pursuant thereto. The inspection prompted by this accident is part of an inspection and investigation program to assure compliance with the Act and is authorized by section 8(a) of the Act.
3. Federal Clearing Die Casting was previously inspected by OSHA on September 8, 1975. A citation issued to the employer on November 7, 1975 included violations related to the safe operation of presses. A copy of this citation is attached hereto, made a part hereof, and marked Exhibit C. On April 30, 1976 Charles F. Kerbs, President, informed the OSHA Area Office by letter that all items of this citation had been abated.
Paragraph two clearly shows that OSHA sought the warrant for the purpose of conducting “an accident investigation” involving “an employee’s hands being trapped in a press on January 7,1980.” The application, however, made no effort whatsoever to substantiate the even bare minimum that an accident had in fact occurred.
We need not belabor the point that all newspaper reports are not of sufficient reliability to form the basis of Fourth Amendment probable cause determination. Indeed, the Supreme Court has recognized that the publication of “factual error” frequently occurs in newspapers. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
We do not question Stoessel’s good faith belief that an accident had indeed occurred. Nonetheless, it is well settled that the occurrence of an accident, in and of itself, is not proof of an OSHA violation. National Realty and Construction Co., Inc. v. OSHRC, 489 F.2d 1257 (D.C.Cir.1973). OSHA failed to make any attempt to question the victim or members of his family— perhaps even a conversation with one of the victim’s physicians might have made the outcome in this case different. Similarly, a complaint filed by a co-worker of the victim might have been sufficient to satisfy the “specific evidence” requirement and cure the fatal flaw in the application. A magistrate must be presented with facts upon which he can exercise the independent judgment required of him. Mere journalistic prose is not the kind of underlying factual data upon which a magistrate can exercise such judgment.
Furthermore, the application is nothing more than unrelieved boilerplate, stating merely that the occurrence of the accident “indicated the existence of dangerous conditions that may be in violation of the Act and or regulations issued pursuant thereto.” We recently rejected this kind of boilerplate language in a similar context, Weyerhaeuser Co. v. Marshall, supra. As we there stated:
We must assume that the warrant required by Barlow’s in cases where the company does not voluntarily submit to an inspection has some significance. . . . We decline to strip the magistrate of his probable cause function, as the very purpose of the warrant is to have the probable cause determination made by a detached judicial officer rather than by a perhaps over-zealous law enforcement agency.
592 F.2d at 378 [citations omitted]. The court went on to note that had only “a few more additional facts” been added to the Weyerhaeuser boilerplate, the “specific evidence” manner of establishing probable cause would have been satisfied. Id. In view of the ease with which Stoessel could have obtained such additional information, we see no reason to uphold the application submitted in this case.
Paragraph 3 of the application contains information relating to OSHA’s prior citation of Federal. The Secretary contends that this information is sufficient to supply the “specific evidence” to support a finding of probable cause. We disagree. To hold that the existence of an earlier OSHA citation is a sufficient reason upon which to base a finding of probable cause would in effect grant OSHA a perpetual right of reinspection once an initial violation was found. Accord, Marshall v. Weyerhaeuser Co., 456 F.Supp. 474, 483 (D.N.J. 1978).
Moreover, it is important to note both parties concede that the hydraulic punch press involved in the 1980 accident was not one of the machines cited in 1975 to be in violation of OSHA regulations. As a matter of fact, the press involved in this case had been inspected and found to be free of any defects. Nonetheless, the district court ruled that the earlier citation served to buttress the magistrate’s finding that probable cause existed for the 1980 violation. This holding appears to violate OSHA’s own presumption which states as follows:
Hazardous conditions which may be viola-tive of the Act will ordinarily be corrected by the employer, once brought to his attention.
29 C.F.R. § 1977.12(b)(1). We hold therefore that the 1975 OSHA citation issued more than four years earlier, does not constitute “specific evidence” that there is a probability of an existing violation.
All other arguments and issues raised by the parties, although not directly addressed by this opinion, have been carefully considered. Because of our ultimate disposition of this cause, we find it unnecessary to reach these matters. Accordingly, the warrant is dissolved, — the orders appealed from having been in all respects
Reversed.
. Mai Coghlan and Michael Coghlan, officers of Federal Clearing Die Casting Company, are joined as Defendants-Appellants in this action.
. Occupational Safety and Health Administration.
. United States District Court for the Northern District of Illinois, Eastern Division.
. Although Judge Bua’s adjudication of civil contempt, dated February 20, 1980, made no mention of Federal’s Motion to Quash Warrant, we assume that it was denied sub silentio.
. Originally, this hearing was scheduled for March 14, 1980, but was subsequently rescheduled to April 3, 1980.
. Section 8(a) of the Act provides:
“In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized—
(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and
(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee.” Pub.L. No. 91-596, § 8(a), 84 Stat. 1598.
. For a more general discussion, see Rothstein, OSHA Inspections After Marshall v. Barlow’s, Inc., 1979 Duke L.J. 63.
. The Secretary does not attempt to argue that probable cause for the issuance pf the warrant was based on Barlow’s alternative showing, i. e., that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular establishment. 436 U.S. at 320, 98 S.Ct. at 1824. Rather, the critical emphasis in this case is whether sufficient “specific evidence” was present to support a showing of probable cause.
. A relevant example of such journalistic unreliability was seen in the highly publicized Pulitzer Prize winning article, “Jimmy’s World,” which recently appeared in the Washington Post on September 28, 1980. It was subsequently discovered that the author, Janet Cooke, fictionalized the entire story.
. For example, if the warrant application presented to the magistrate had contained evidence of employee complaints, the district court may very well have been justified in its finding of “specific evidence” to support a showing of probable cause. See generally Marshall v. W & W Steel Co., Inc., 604 F.2d 1322 (10th Cir. 1979); Weyerhaeuser Co. v. Marshall, 592 F.2d 373 (7th Cir. 1979); In the Matter of Establishment Inspection of: Gilbert & Bennett Mfg. Co., 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979); Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283 (9th Cir. 1979).
. See quoted text, supra, at 797.
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_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America v. Samuel WILLIAMS, Appellant.
Nos. 23093, 23098.
United States Court of Appeals, District of Columbia Circuit.
Nov. 3, 1970.
Mr. J. Gordon Forester, Jr., Washington, D. C. (appointed by this court) was on the brief for appellant.
Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry and John R. Dugan, Asst. U. S. Attys., were on the brief for appellee.
Before BAZELON, Chief Judge, and MeGOWAN and TAMM, Circuit Judges, in Chambers.
PER CURIAM:
These appeals are from jury convictions of passing and uttering counterfeited obligations of the United States (18 U.S.C. § 472), and for intimidating a government witness (18 U.S.C. § 1503). The three issues raised by appellant on appeal all relate to matters to which no objection was taken in the trial court.
Appellant first argues that the trial judge abused his discretion by failing to exclude prior convictions of witnesses who testified for appellant. See Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). In Davis v. United States, 133 U.S.App.D.C. 167, 409 F.2d 453 (1969), this court held that the Luck doctrine applies to impeachment by prior convictions of all witnesses, not just the accused. However, unless the trial judge’s discretion in this regard is properly invoked in the first instance with respect to an accused testifying in his own defense, it cannot normally be held on appeal to have been abused. See, e. g., Evans v. United States, 130 U.S. App.D.C. 114, 397 F.2d 675 (1968), cert. denied, 394 U.S. 907, 89 S.Ct. 1016, 22 L.Ed.2d 218 (1969); Harley v. United States, 126 U.S.App.D.C. 287, 377 F.2d 172 (1967); Hood v. United States, 125 U.S.App.D.C. 16, 365 F.2d 949 (1966). The same principle is a fortiori applicable to defense witnesses other than the accused.
Appellant’s second contention focuses upon the trial judge’s explanatory remarks prefatory to his instruction to the jury with respect to the impeachment of defense witnesses. The trial judge stated that a counsel vouches for the credibility of the witnesses he produces. Appellant charges that these remarks put the credibility of the defense counsel in issue. This appears to be a strained construction of what was said; and we note that trial counsel himself saw no occasion to object. Under the circumstances, we find no basis for reversal in this incident.
Finally, appellant contends that he was fatally prejudiced by the allegedly improper cross-examination by the prosecutor of certain character witnesses offered by appellant. Questions were asked as to the witnesses’ knowledge of previous arrests of appellant for robbery, possession of a prohibited weapon, and housebreaking. There is considerable latitude to ask character witnesses about the state of their knowledge of defendant’s background and experience as they bear upon his reputation for honesty and integrity. See Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1958); Cf. United States v. Wooden, 137 U.S.App.D.C. 1, 420 F.2d 251 (1969). Whether the government’s cross-examination in this instance was within the permissible bounds need not be definitely resolved by us since there was no objection to the questions asked. Of this point, as of the others discussed above, it is true in any event that the error, if any, was harmless when considered by reference to the entire record. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
Affirmed.
. Appellant has also belatedly challenged in this court the constitutionality of 14 D.C.Code § 305. The issue is untimely; and see Bailey v. United States, 138 U.S.App.D.C. 242, 426 F.2d 1236 (1970).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
In re GRAND JURY PROCEEDINGS. UNITED STATES of America, Appellee, v. Charles BALLIRO, witness before the Grand Jury, Appellant.
No. 77-2414
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Aug. 24, 1977.
Roland E. Dahlin, II, Federal Public Defender, Charles S. Szekely, Jr., Asst. Federal Public Defender, Houston, Tex., for appellant.
James R. Gough, U. S. Atty., Jack C. O’Donnell, Mary Sinderson, Asst. U. S. Atty., Houston, Tex., for appellee.
Before CLARK and FAY, Circuit Judges:
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
The appellant, Charles Balliro, refused to obey an order of the United States District Court for the Southern District of Texas compelling him to submit to the taking of fingerprints, palm prints, and photographs, at the behest of a federal grand jury sitting in Houston, Texas. Balliro appeals from the district court’s subsequent order adjudging him in civil contempt and ordering him into the custody of the United States Marshal until obedience to the court’s order or until expiration of the grand jury’s term on January 14, 1978. We affirm the judgment of the district court.
On March 3, 1977, the appellant, Charles Balliro, was subpoenaed to appear before a federal grand jury in Houston, Texas that was investigating interstate transportation of counterfeit bonds. After Balliro was sworn and declined to cooperate voluntarily with the investigation by providing his fingerprints, palm prints, and a photograph, the presiding deputy foreman of the grand jury, at the request of the prosecutor, ordered Balliro to do so. Stating that he wished to preserve his constitutional rights, Balliro refused to obey.
On the same day, the prosecutor sought a motion to compel Balliro’s compliance with the grand jury’s order. After a hearing, the district court took the government’s motion under advisement and, on April 7, 1977, granted it. When counsel for Balliro told the court on April 18, 1977, that the witness would refuse to obey the order, the government moved for an order finding Balliro in contempt of court and also for an order to show cause. On May 29, 1977, the court ordered Balliro to show cause why he should not be held in civil contempt for refusing to comply with the district court’s order. Balliro waived personal appearance at this hearing. The district court adjudged him in contempt on July 1,1977, and ordered him into the custody of the United States Marshal until he complied with the order to compel or until the grand jury’s term expired on January 14, 1978. On defense motion, the district court stayed execution of the contempt order pending appeal. Upon appeal, an abbreviated briefing schedule was set and an order entered that a decision would be reached by August 30, 1977.
The appellant maintains that the district court erred in granting the government’s motion to compel, because the government attorney was using the grand jury to obtain evidence in furtherance of a governmental investigation. In support of this contention, the appellant argues that the FBI on several occasions had sought without success his voluntary compliance in securing identifying exemplars which they could not otherwise obtain because they lacked cause to arrest him. When served with the grand jury subpoena at his Massachusetts home, Balliro was offered the opportunity to supply his fingerprints, palm prints, and photograph instead of traveling to Houston, Texas, to answer the subpoena. When Balliro appeared before the grand jury and refused to cooperate voluntarily, the presiding deputy foreman of the grand jury, at the request of the prosecutor, ordered Balliro to submit to being fingerprinted, palmprinted, and photographed. The appellant maintains that these facts demonstrate that the grand jury had lost its independence and that, for this reason, the district court should have exercised its supervisory power over the proceeding, denied the government’s motion to compel, and quashed the subpoena.
This Circuit’s recent decision in United States v. Shaw, 555 F.2d 1295 (5th Cir. 1977), controls the result in this case. The appellant in Shaw had complied voluntarily when directed by a grand jury to provide a voice exemplar. The voice exemplar later played a crucial role in his conviction for devising a scheme to defraud the telephone company. Appellant asserted that, in this process, “the grand jury was reduced to nothing more than an arm of the prosecution and that to allow this practice will undermine the integrity of the grand jury system.” However, the court stated:
The mere fact that the prosecution in this ease may have suggested that the defendant be called for the purpose of giving a voice exemplar in no way impugns the integrity of the grand jury’s investigation.
555 F.2d at 1300.
A grand jury has broad investigative powers to determine whether a crime has been committed and who has committed it. The grand jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge. See United States v. Dionisio, 410 U.S. 1, 15, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). Quashing a subpoena for a witness threatens the grand jury’s historical prerogative to search for leads to and sources of physical and verbal evidence of criminal enterprise. In United States v. Doe, 541 F.2d 490 (5th Cir. 1976), this Circuit held that to quash a subpoena to appear before a grand jury because of prosecutorial misuse of the system the witness “must assert that the grand jury has lost its independence which is essential to the historical assumption of neutrality that underlies the grand jury process.” 541 F.2d at 492 (footnote omitted). While asserting that the prosecutor abused the grand jury process, appellant has shown only that the grand jury acted upon information received by the prosecutor and presented by him to the grand jury and complied with his request to order the witness’ cooperation. Accordingly, the district court’s order of July 1, 1977, adjudging appellant in contempt and ordering him into the custody of the United States Marshal until obedience to the court’s order or until expiration of the grand jury’s term on January 14, 1978, is affirmed and this case is remanded to the district court for further proceedings consistent with this opinion.
. Appellant recognizes that a grand jury’s subpoena is not a seizure within the meaning of the fourth amendment and that a grand jury’s directive to furnish identifying exemplars such as handwriting, fingerprints, and photographs does not violate any fourth or fifth amendment rights of the witness. See United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_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.
Harry FREDMAN, Plaintiff-Appellant, v. HARRIS-HUB COMPANY, Inc., Defendant-Appellee. Harry FREDMAN, Plaintiff-Appellant, v. ESTEE SLEEP SHOPS, INC., Defendant-Appellee.
Nos. 18210, 18211.
United States Court of Appeals, Seventh Circuit.
April 28, 1971.
Morris Shenker, Bernard J. Mellman, Cordell Siegel, St. Louis, Mo., Harvey B. Jacobson, Jr., Washington, D. C., Gregory B. Beggs, Pendleton, Neuman, Williams & Anderson, Chicago, Ill., for plaintiff-appellant.
R. Howard Goldsmith, Charles W. Ryan, Chicago, Ill., for defendants-appellees; Dressier, Goldsmith, Clement & Gordon, Chicago, Ill., of counsel.
Before KILEY, PELL and STEVENS, Circuit Judges.
STEVENS, Circuit Judge.
In 1962, plaintiff invented a novel, sophisticated and valuable bed assembly which, by joining originally designed side rails at their centers with an interconnecting tension member, eliminated the need for wooden slats to support bed springs and solved significant problems associated with the use of conventional bed assemblies. His invention was clearly patentable. The questions presented are (1) whether claim 3 of his patent, which may be read to describe defendant’s crude device, is valid; and (2) whether defendant’s simple approach to the goal of slatless beds is sufficiently equivalent to the inventor’s to constitute infringement of claim 4
I.
A description of the principal problems solved by plaintiff’s invention will identify the difference between the issues presented under claims 3 and 4.
One of the most significant problems confronting bed manufacturers and users has been the use of slats extending between, and supported on, the bed’s side rails. Normally, three wooden slats were used. Quite often outward deflection of certain portions of the bed rails and downward deflection of the central portion of the slats would cause the slats to drop off the ledges and thus no longer support the bed springs. Sitting on the edge of a bed would tend to move all of the slats toward one bed rail, and would also deflect the bed rail outwardly, permitting the slats to drop to the floor.
The problem associated with the use of wooden slats as thus described could have been eliminated by replacing the slats with a tension member interconnecting the central portion of conventional side rails, and thereby preventing outward deflection of the rails. The bed springs could then have rested securely on the horizontal flanges or ledges projecting inwardly from the side rails. Claim 3 of plaintiff’s patent would have described an adequate solution to the industry’s bed slat problems were it not for a complicating factor resulting from lack of standardization in the industry.
The bed rails are supported by pins which are set in notches in the end boards. Although the width of bed springs assemblies has been standardized for some time, the distance between the pins on headboards and footboards supporting the bed rails varies considerably from the standard spring widths. Thus, although a standard spring assembly for a double bed is 52% inches wide, the slots in the headboard and footboard in which the supporting pins are placed may be as much as 54% inches apart.
The discrepancy between the standard spring assembly widths and the variable distances between the notches in the end boards defeated pre-1962 attempts to produce a satisfactory slatless bed assembly. Without the wooden slats, the springs rested on the horizontal flanges or ledges projecting inwardly from the side rails. The metal ledges on conventional side rails were only about 1% inches wide. If the side rails were no further apart than the width of the springs, presumably such ledges would support the spring assembly, provided that a suitable “anti-spread device” prevented outward deflection of the rails when the bed was being moved or when someone was sitting on the middle of it. But the narrow ledges were not adequate to prevent the bedding from falling through to the floor when the notches in the end boards were farther apart than the width of the standard spring assemblies.
Plaintiff discovered an ingenious and by no means obvious solution to the problem. He designed new side rails which differed from the conventional in several respects. They contained a broader horizontal ledge which provides firm support for the spring assembly. More significantly, they were designed to provide a snug clamping relationship between the vertical portions of the two side rails and the spring assembly, with the side rails retaining their parallelism with each other and their firm support for the spring assembly, notwithstanding variations in the distance between headboard notches.
The patented rail has both a horizontal and a vertical flange over the major portion of its length, but near its ends the horizontal flange flows downwardly into the plane of the vertical flange. In consequence, when the rails are affixed to the headboards and footboards, and interconnected by a centrally located tension member, deflection may occur at the ends of the rails while the major portions of the rails maintain their parallel relationship with each other. As stated in the patent specifications, the major portions of the rails — i. e., the portions with both horizontal and vertical flanges — “will not flex” when interconnected by a tension member, whereas the purely vertical end portions “ * * * may be deflected as much as one inch thus accommodating headboards having variations of two inches more than or less than the standard width of the spring assemblies.”
The specifications explain some of the advantages of the parallelism thus achieved. The spring assembly actually becomes an integral part of the bed thereby precluding a substantial canting of the side rails in relation to the headboard and footboard. Furthermore, with the vertical flanges of the side rails disposed against the bedding, there is no space between the bedding and the side rails in which articles may become lost or deposited; this snug relationship also eliminates a spot in which dust normally accumulates. And, of course, the lateral flexibility at the ends of the rails achieved the goal of slatless beds despite varying distances between headboard notches.
II.
After learning of the commercial success of plaintiff’s slatless bed assemblies, the defendant, Harris-Hub Company, Inc., began to manufacture and sell the accused assembly. The accused device does nothing more than interconnect the centers of two conventional metal side rails with a strap that applies sufficient tension to bow the rails inwardly against the bedding.
Although a purely theoretical description of the geometry of the bed rails might suggest that the vertical flanges would make contact with the bed springs only at the apex of each curve, in fact, since the maximum deflection of about an inch on each side rail is such a small fraction of the length of the rail, there is contact between the spring assembly and the bows throughout the major portion of the length of the rails. Plaintiff contends that this difference between parallel rails with end portions that flex as much as one inch, and bowed rails which flex to the same extent, is not sufficient to excuse defendant’s copying of his idea.
Ethical considerations provide persuasive support for plaintiff’s position. But under controlling legal principles, they are subordinate to the question whether defendant has violated or merely exercised a right protected by federal patent law. Cf., Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661. As already noted, the questions involve (a) the validity of claim 3 and (b) the alleged equivalence of claim 4 and defendant’s bow.
A.
The district court 311 F.Supp. 734, found claim 3 invalid, and we have no doubt that he was correct. In construing claim 3, we, of course, look at the language of the claim itself, not at the device manufactured by plaintiff which embodied features described in other claims. It is equally clear that plaintiff’s commercial success with the assembly described in claim 4 has no bearing on the validity of claim 3.
Plaintiff argues that the district court erroneously construed claim 3 as nothing more than an anti-spread device. As so construed, the claim is plainly anticipated by a 1933 patent covering an anti-spread device for beds consisting of an adjustable strap interconnecting the central portions of the side rails. Moreover, the language of the claim itself describes the purpose of the interconnecting tension member as “preventing outward deflection of the central portion of the rails.” The specifications explain the importance of preventing outward deflection. Thus, there is ample support for the district court’s interpretation of claim 3 in the language of the patent.
Plaintiff argues, however, that claim 3 should be read as also describing an inward deflection of the rails. But there is no reference to an inward deflection in the claim. Plaintiff seeks to equate the claim’s reference to “maintaining” the relationship between the rails and- the bedding with his argument “that the cross-member will pull the side rails into and underneath the box springs.” But his argument relates to the favorable pulling action of the actual device as described in claim 4, rather than to a fair interpretation of the word “maintaining” in claim 3, which, as there used, relates to the avoidance of a spreading action. The claim does not use the verb “pull”; the verb “maintain,” which it does use, does not describe active movement.
Neither claim 3 nor anything else in the patent suggests that the inventor believed conventional rails could be used to solve the slatless bed problem resulting from disparities between the standard width of springs and the varying distances between end board notches. The use of conventional rails with a simple anti-spread device would have been acceptable if no such disparity existed. It is thus reasonable to interpret claim 3 as describing an anti-spread device which would be an adequate substitute for wooden slats in beds using headboards with notch separations of the same distance as the width of standard springs. The problems solved by other claims in the patent would not be present with respect to such beds. And nothing in the patent suggests that claim 3 would be an adequate solution to the problems described in the specifications except in such cases. We, therefore, construe claim 3 as an anti-spread device contemplating a slatless assembly for beds with end board notch separations equal to the width of the springs. As such, it was plainly invalid.
Apart from the question of anticipation, we would have grave doubt about the validity of plaintiff’s patent if his idea embodied nothing more than a tension member connecting two ordinary metal side rails. Cf., Great A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147, 152-153, 71 S.Ct. 127, 95 L.Ed. 162; Anderson’s Black Rock v. Pavement Salvage Co., 396 U.S. 57, 61, 90 S.Ct. 305, 24 L.Ed.2d 258.
B.
Almost the entire text of claim 4 is an explanation of the special design of plaintiff’s side rails. Claim 4 clearly does not describe defendant’s device, which uses conventional rails. Plaintiff argues, however, that infringement is established by the doctrine of equivalence. Relying on Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607-609, 70 S.Ct. 854, 94 L.Ed. 1097, he contends that the accused device performs “substantially the same work in substantially the same way to obtain substantially the same result” as the conception described in claim 4.
Plaintiff submitted proposed findings of fact on the issue of equivalence which the district court rejected. As the Supreme Court noted in Graver, a finding of equivalence is a determination of fact with respect to which the trial court’s decision should not be disturbed unless clearly erroneous. 339 U. S. at 609-610, 70 S.Ct. 854. We are not persuaded that the district court’s rejection of plaintiff’s proposed findings on the issue of equivalence was clearly erroneous.
The text of the patent indicates that one of the inventor’s assumptions, which required him to design a novel rail with its horizontal flange flaring into the vertical at its ends, was that the “right angular cross-sectional configuration will not flex.” If flexing a conventional rail into a bow had been within his conception, and if that configuration produced a result which is truly an equivalent of his invention, he took unnecessary pains to develop his sophisticated rail design. We think a fair reading of the entire patent indicates that his contribution to the art was predicated on an assumption that the portion of the rail which provides both clamping pressure from the vertical flange and adequate support from the horizontal flange “will not flex.”
We are also persuaded that plaintiff cannot deny that the true parallelism of his device produces a result sufficiently superior to the bowing of conventional rails to preclude application of the doctrine of equivalence. The benefits of parallelism are described in the specifications and, in large part, constitute the objective achieved by the special design of the rails. As we consider the rail design a crucial fe.ature of plaintiff’s patented invention, we are unwilling to extend the scope of plaintiff’s monopoly to include all slatless bed assemblies using a tension member to interconnect conventional side rails. Plaintiff has no patent on the function performed by his invention. The substance of plaintiff’s invention includes an original design for side rails.
We read the language which plaintiff used in his patent as foreclosing his claim that tension sufficiently strong to bow conventional rails is the equivalent of his unique side rail design. He may not thus demean his own ingenious concept.
The judgment is affirmed.
. ‘‘3. A bed assembly comprising a pair of side rails, a pair of end boards interconnecting and extending perpendicularly to said rails, a spring assembly supported on and between said rails and between said end boards, each of said rails being of one-piece metallic construction and having a right angular cross-sectional configuration substantially over a major portion of its length and including a horizontal flange extending .under the spring assembly, a tension member interconnecting the central portions of the rails thereby preventing outward deflection of the central portions of the rails and maintaining the horizontal flange thereof in underlying relation to the spring assembly thereby providing support therefor.”
. “4. The structure as defined in claim 3 wherein each end portion of each rail is formed in the configuration of a vertical plate capable of being resiliently laterally deflected, hook members on the ends of each rail for engagement with the end boards, said plates enabling the end portions of the rails to be deflected laterally to engage with pins on the end boards spaced at varying distances apart for connecting the rails to the end boards while maintaining the central portions thereof in constant spatial relation, the spatial relation between the vertical flanges of the side rails being such that the spring assembly will be clamped therebetween whereby the spring assembly is locked to the rails to rigidify the entire assembly by retaining the vertical flanges snugly to the spring assembly throughout the major portion of the length of the rails.”
. See plaintiff’s Patent No. 3,118,151, issued January 21, 1964, column 1, lines 33-45.
. “Inasmuch as tho portion of the bed rails 20 which are of right angular cross-section configuration will not flex, the single centrally located strap 50 will retain the major portion of the bed rails in parallel relation and in substantially gripping relation to the spring assembly 12.” Patent, column 3, lines 08-73.
. Id., column 4, lines 5-8.
. Id., column 4, lines 9-12.
. Id., column 4, lines 48-53.
. Altoona Publix Theatres, Inc. v. American Tri-Ergon Corp., 294 U.S. 477, 487, 55 S.Ct. 455, 79 L.Ed. 1005; Sanitary Dist. of Chicago v. Activated Sludge, Inc., 90 F.2d 727, 730 (7th Cir. 1937) cert. denied 302 U.S. 736, 58 S.Ct. 121, 82 L.Ed. 569; see Moon v. Cabot Shops, Inc., 270 F.2d 539 (9th Cir. 1959).
. We find no evidence in the record of any attempt by plaintiff to manufacture a slatless bed assembly that did not embody the features of claim 4 or, more narrowly, that did not use the rails described in claim 1.
. Fanders No. 1,926,432. The Fanders patent was not cited in the patent office. The law in this circuit is clear that there'is no presumption of patent validity when the pertinent prior art was not before the patent examiner. See Rockwell v. Midland-Ross Corp., 438 F. 2d 645, 650 (7th Cir. 1971); Appleton Electric Co. v. Efengee Electrical Supply Co., 412 F.2d 579, 581 n. 4 (7th Cir. 1969), and cases cited therein; see also Graham v. John Deere Co., 383 U.S. 1, 25-26, 86 S.Ct. 684, 15 L.Ed. 2d 545.
. See Patent, column 5, lines 12-13.
. See, e. g., id., column 1, lines 33-41, 62-67, column 2, lines 3-6.
. This argument is supported by a portion of the testimony of the defendant's expert witness. However, it is the language of plaintiff’s claim, not of defendant’s expert witness, that is controlling. See Winans v. New York & Erie R.R. Co., 62 U.S. (21 How.) 88, 100-101, 16 L.Ed. 68; Minnesota Mining & Mfg. Co. v. Carborundum Co., 155 F.2d 746, 749 (3rd Cir. 1946); cf., Methode Electronics, Inc. v. Elco Corp., 385 F.2d 138, 140 (3rd Cir. 1967).
. See footnote 2, supra.
. The quoted language is from plaintiff’s brief in which he paraphrases the language “performs substantially the same function in substantially the same way to obtain the same result,” which the Supreme Court in Graver quoted from Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 74 L.Ed. 147.
. Patent, column 3, lines 69-70. Tlie quotation is from a description of plaintiff’s rail, rather than a conventional rail, but we are nevertheless satisfied that the invention was predicated on the assumption that without plaintiff’s design features, the rail would have been inflexible, or sufficiently so that the desired result could not be achieved without the special rail design.
. “But, after all, even if the patent for a machine be a pioneer, the alleged in-fringer must have done something more than reach the same result. He must have reached it by substantially the same or similar means, or the rule that the function of a machine cannot be patented is of no practical value. To say that the patentee of a pioneer invention for a new mechanism is entitled to every meekanical device which produces the same result is to Bold, in other language, that he is entitled to patent his function. Mere variations of form may be disregarded, but the substance of the invention must be there.” Westinghouse v. Boyden Power Brake Company, 170 U.S. 537, 569, 18 S.Ct. 707, 723, 42 L.Ed. 1136.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_r_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
STIMPSON v. COMMISSIONER OF INTERNAL REVENUE.
No. 9219.
Circuit Court of Appeals, Eighth Circuit.
Jan. 25, 1932.
Rehearing Denied March 1, 1932.
William M. Fitch, of St. Louis, Mo. (George H. Moore, of St. Louis, Mo., on the brief), for petitioner.
Norman D. Keller, Sp. Asst, to Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key, Sp. Asst, to Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Hartford Allen, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent.
Before VAN VALKENBURGH, BOOTH, and GARDNER, Circuit Judges.
BOOTH, Circuit Judge.
This is a petition for review of an order of the Board of Tax Appeals entered September 39,1939, as amended by an order of February 12, 1931, redetermining deficiencies in the income taxes of petitioner for the calendar years 1922, 1923-, and 1924. The two latter years only are here involved.
The question presented is whether certain transactions by petitioner relative to'securities owned by her were sales of said securities resulting in taxable gain to petitioner.
The relevant statutes are section 213 (a) of the Revenue Act of 1921 (e. 136, 42 Stat. 237, 237), and section 213 (a) of the Revenue Act of 1924 (c. 234, 43 Stat. 253, 267, 2:6 USCA § 954 (a). The two sections are substantially identical; the former reading, so far as here material,, as follows:
“See. 213. That for the purposes of this title * * * the term 'gross income’—
“(a) Includes gains, profits, and income derived from * * * sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property. * * * ”
The facts were stipulated; the more important are substantially as follows: Mrs. Stimpson, the petitioner, during the time of the transactions involved, was an inhabitant of Missouri. On May 14, 1923, she was the owner of certain securities, having been the owner of some of them since August 1, • 1929, and of others since July 13, 1921. The securities were in the custody of the State National Bank of St. Louis, Mo. On May 14, 1923, she wrote the following letter:
“St. Louis, Missouri. May 14, 1923. “State National Bank, St. Louis, Missouri.
“Gentlemen: You are holding for my account in your safe keeping department certain bonds and other securities.
“I hereby authorize you to sell these bonds and securities on or between this date and May 39th and place proceeds of the same to my account, and I also hereby authorize you to purchase for my account United States Treasury Certificates of such issue as you may be able to buy, charging the amount to my cheeking account.
“Further, sometime during the month of ■ June I would like for you to purchase back the first mentioned bonds and securities for my account and pay for the same with the
STIMPSON v.- COMMISSIONER OF INTERNAL REVENUE 817
65 F.Í2A) 815
proceeds of the sale of the United States Treasury Certificates purchased for mo as authorized above.
“Yours truly,
“[Signed] Dorothy Baker Stimpson.
“P. S.—You are authorized to charge my account one-eighth of one per cent., covering the above transactions, as your commission.
“[Signed] Dorothy Baker Stimpson.”
The bank received the letter and acted as follows: It placed a valuation upon the securities, using the market value where available; and, where not available, used an approximate value based upon the par value, income produced, supposed solvency of maker, and other information. The total amount of such valuation was $104,000. The bank caused this amount to be entered as a credit on the books of the bank in favor of the petitioner, and caused the securities and their respective valuations to be entered on the books of the bank as assets of the bank amounting to $104,000. The bank then charged the account of petitioner with $104,-000, took out of its assets United States Treasury certificates then rated at $104,000, and placed them in the hands of an officer of the bank for petitioner. This same officer of the bank had theretofore had the custody of the securities owned by Mrs. Stimpson. Thereafter, and in June, 1923, the bank took back into its assets the Treasury certificates valued at $104,000 and placed a credit to the account of Mrs. Stimpson of $104,000. The bank then charged Mrs. Stimpson’s account with $104,000, and the said officer of the bank thereafter held the said securities for Mrs. Stimpson. The various entries and credits were entered as parts of the same transaction.
Mrs. Stimpson did not know at the time the details of the transactions except as they appeared on her monthly statements from the bank, and these did not show the source from which the credit items had been obtained nor to whom the debit items had been paid. Mrs. Stimpson paid the bank one-eighth of one per cent, of $104,000 for handling the transactions.
Transactions similar in substantial respects took place in May and June, 1924, Mrs. Stimpson having written to the bank in May, 1924, a letter similar to the letter of May 14, 1923.
The valuation placed on the securities in 1924 (some additional securities having been added) was $138,000. June 2,1924, the bank 55 F.(2d)—52
sent to Mrs. Stimpson, who was then in Paris, Prance, the following letter :
“State National Bank,
“St. Louis, Mo. June 2nd, 1924. “Mrs. Dorothy Baker Stimpson, 58 Rue de Vaugirard, Paris, Prance.
“Dear Mrs. Stimpson: We enclose statement of your account to the close of business May 31st, 1924, together with cancelled checks and memorandums showing the various credits. The withdrawal of $5,100.00' on the 31st ult. was made by us and the amount invested in U. S. Treasury certificates. We have sold the certificates again and your account has been credited $5,100.00 to cover.
“We charge your account $1,000'.00' and send you, herewith, our two drafts on the American Exchange National Bank of New York for $500.00 each payable to your order.
“Wo also handled, in the same manner as last year, your securities left with us for safekeeping. We disposed of the securities, with the exception of the Liberty Bonds, at the par value of $138,000.00, investing that amount in U. S. Securities. We have repurchased the U. S. securities and have used the amount to buy back your securities so that same stand just as they were before. In your letter of May 14, 1923, you authorized us to charge your account Vs% of 1% as our commission covering this transaction. We have, therefore, charged your account $172.-50.
“Yours very truly,
“[Signed] E. W. Kleinschmidt,
“Assistant Cashier.”
Mrs. Stimpson had no information as to the details of the transactions of 1924 except as disclosed by the foregoing letter.
The United States Commissioner of Internal Revenue later examined these various transactions; concluded that they involved sales of securities; ascertained the original eost to Mrs. Stimpson of the securities; computed the gains made by reason of said sales; included said gains in the income account of Mrs. Stimpson for the years mentioned; and determined a deficiency of income taxes of' $1,638.05 for the year 1923 and of $4,111.61 for the year 1924. The Board of Tax Appeals affirmed the Commissioner by its decision of May 23,1930 (19 B. T. A. 1059), as amended by its order of February 12,1931. The present petition for review followed.
The question presented for consideration of this court is whether the above-outlined transactions of 1923 and 1924 constituted valid and effective sales of the petitioner’s securities which will support the income tax.
From the elaborate and interesting brief for the petitioner, we gather that the main contentions of petitioner are:
(1) That there was no sale because (a) the bank had no power to make a sale to itself; (b) the bank was a trustee and could not properly earry out the transactions as actually performed; (c) a consideration for the sale was absent.
(2) It is further contended: “The direetion to repurchase her said securities given by the petitioner shows clearly that she did not intend to pass absolute and final title to her securities under her direction to sell. If the Bank had sold on the open market at the marbetable value of her securities, and had bought, at the market value, treasury certificates after the direction of petitioner to sell her securities and purchase certificates, and if the Bank had sold the certificates' on the market and repurchased the identical securities which petitioner held at the time of giving the direction to sell, even then a sale would not have been accomplished, for it is apparent that the petitioner did not intend to part absolutely with title to her seeurities.”
We take up the contentions in reverse order. ^ It is to be noted that the language of the instructions to the bank was to sell the securities owned by petitioner and purchase United States Treasury certificates, and after June, to “purchase back the first mentioned bonds and securities” and pay for the same with the proceeds of the sede of the Treasury certificates. The language is plain.and free from ambiguity. It calls for a sale of seeurities and a purchase of certificates. There is nothing in the language used to suggest an accommodation loan of certificates, as contended by counsel for petitioner. The bank was to be paid a commission for carrying out the transactions. This also indicated the intention to consummate a sale.
One of two inferences would seem to follow: Either that a sale of the securities was' intended; or that some deception was intended and the form of a sale used to cover it up. We prefer to draw the first inference.
Considerable discussion is indulged in by both parties as to the purpose of the transactions involved. This purpose is not direetly disclosed by the record. However, the Board of Tax Appeals was asked to eonsider section 12756 of the Revised Statutes of Missouri, 1919, which reads as follows: “Sec. 12756. Property held June 1st liable for taxes. — Every person Owning or holding proper^y orL th® ffrsi day of June, including all siich property purchased on that day, shall be liable for taxes thereon for the ensuing year.”
We, of course, take judicial notice that United States Treasury Certificates were not taxable by the state of Missouri. •
What weight was given to the statute ^ bearing upon the question of intent of petitioner in entering into the transactions in question we do not know. It is earnestly contended by petitioner that the Board of Tax Appeals ought not to have considered the statute at all, and that this court should not consider it. It need hardly be reiterated that federal courts take judicial notice of the statutes of the several states, and, if such statutes have a bearing upon the question of intent of parties in their various transactions, they may be properly considered, notwithstanding they are not embodied in a stipulated statement of facts. Consideration of this statute in connection with the facts disclosed in the record does not raise any ugly imputation against petitioner as her counsel suggests, Actual sale of property prior to the incidence of a tax thereon is not illegal, even though the sale is made in order to avoid liability. for the tax. Bullen v. Wisconsin, 240 U. S. 625) 36 ct 473, 60 L Ed. 830; United states v. Isham, 17 Wall. 496, 21 L. Ed. 728; Ford v. Nauts (D. C.) 25 F.(2d) 1015; Iowa Bridge Co. Commissioner, 39 F.(2d) 777, 781 )C. C. A 8) Wiggin v. Commissioner (C. C A.) 46 F.(2d) 743, 745.
The othercontention of petitioner, that transaeti°ns in question could not have keen sai0s i>ecanse the necessary elements of a sa^e were lacking, will be briefly considered,
It is contended that the bank, being an agent of petitioner, was not competent to be a purchaser at the sales;- and that such sales were not authorized by the letters of the petitioner to the bank. A sale by an agent, to himself of the property of his principal is not absolutely void, but voidable at the election of the principal. 2 C. J. 702, § 359; Marsh v. Whitmore, 21 Wall. 178, 22 L. Ed. 482; Hoyt v. Latham, 143 U. S. 553, 12 S. Ct. 568, 36 L. Ed. 259; Hammond v. Hopkins, 143 U. S. 224, 12 S Ct. 418, 36 L.Ed. 134; note 80 Am. St. Rep 555, 563.
While it is true that petitioner did not know all the details of the transactions until the fall of 1926, yet since that time, so far as the record shows, there has been no repudiation of them by the petitioner.
Furthermore, it is plainly inferable from the record that petitioner intended that the bant should itself, he the purchaser of her securities. The letter of May 14, 1923, directed the bank to buy hack in June the very same securities which it had sold in May. The obvious way, if not the only way, to accomplish this, was for the bank to be the purchaser in May and hold until Juno. Especially is this true since some of the securities had no quoted market value.
The contention that there was no valid sale because no price or consideration for the sale was fixed by the petitioner is also, in our opinion, devoid of merit.
It is to be noted here, again, that there has been no repudiation of the transactions by petitioner. She knew the price at which the securities were sold in 1923, shortly after the sale was made, and the price at which the securities were sold in .1934, shortly after that sale was made. The record shows no protest as to either.
The fixing of the selling price by the bank at a figure somewhat lower than the approximate market value, of which eounsel for petitioner apparently complains was plainly to petitioner’s advantage rather than to her disadvantage.
In conclusion we may say that we assume that petitioner’s purpose in carrying out the transactions involved was lawful. We give to the transactions the construction which we think the facts and circumstances demand, and which we think the parties themselves placed upon them at the time.
That petitioner’s federal income taxes have been increased by reason of sueh transactions was a risk which petitioner ran when she determined the form and nature of the transactions.
■ We think the order of the Board of Tax Appeals was right, and it is affirmed.
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_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.
COMMISSIONER OF INTERNAL REVENUE v. EVANS.
No. 4731.
United States Court of Appeals Tenth Circuit.
March 13, 1954.
S. Dee Hanson, Washington, D. C. (H. Brian Holland, Ellis N. Slack, Lee A. Jackson and James Q.' Riordan, Washington, D. C., were with him on the brief)', for petitioner.
Sydney E. Shuteran, Denver, Colo., for respondent.
Before BRATTON, MURRAH and PICKETT, Circuit Judges.
MURRAH, Circuit Judge.
The question presented here is whether monthly support payments received by respondent-taxpayer in the taxable year 1948, pursuant to a property settlement agreement executed by taxpayer and her then husband incident to an interlocutory decree of divorce in the State of Colorado, constitute taxable income to her under Section 22 (k) of the Internal Revenue Code, 26 U.S.C.A. § 22. The facts were adopted by the Tax Court as stipulated, and from a decision holding that such payments were not taxable to her, the Commissioner has appealed.
Taxpayer and John Evans, Jr., were married in Denver, Colorado in 1938, and lived continuously together as husband and wife until 1947, when she filed an action for divorce in the District Court of the City and County of Denver. On December 5, 1947, the parties entered into a property settlement agreement providing in part that pending the hearing on the application for divorce, the husband would pay to the wife the sum of $625 per month “to be used by her as alimony pendente lite”, and $125 per month for each of their three minor children; that these payments would terminate whenever a final decree of divorce in the action then pending should be entered; and that if a final decree of divorce was for any reason not entered within one year from date, or either party died before the said final decree, the agreement should cease and terminate and the rights of the parties should remain as they were prior to the execution of the agreement. The agreement then went on to provide for the terms and conditions of settlement upon the entry of a final decree of divorce.
On December 10, 1947, the Colorado trial court entered its “Interlocutory Decree in Divorce”, wherein it found that a divorce should be granted the wife, and ordered that “an interlocutory decree of divorce is hereby entered dissolving the marriage of plaintiff and defendant six months after the date of this interlocutory decree. It is expressly decreed by the count that during such six months period after the signing of this Interlocutory Decree the parties hereto shall not be divorced; shall still be husband and wife, and neither party shall be competent to contract another marriage anywhere during such period. * * * The court further decrees that after six months from the date hereof this Interlocutory Decree shall be and become a final decree of divorce and the parties shall then be divorced, unless this Interlocutory Decree shall have been set aside, or an appeal has been taken, or a writ of error has been issued.” On June 11, 1948, a final decree of divorce was entered.
In her income tax return for the year 1948, the taxpayer did not include as taxable income payments received from her husband under their agreement during the six months’ period after entry of the interlocutory decree prior to the final decree of divorce, but only those amounts received after the entry of the absolute decree. The Commissioner determined a deficiency on the ground that when the taxpayer received such payments, she was “legally separated” within the meaning of Section 22 (k) and the income was therefore taxable to her.
Following its decision in Eccles v. Commissioner, 19 T.C. 1049, later affirmed in Commissioner of Internal Rev. v. Eccles, 4 Cir., 208 F.2d 796, the Tax Court held that since the interlocutory decree did not immediately terminate the marriage, the wife was not “divorced or legally separated from her husband under a decree of divorce or of separate maintenance” within the meaning of Section 22 (k), and therefore such amount received by her under the interlocutory decree was not taxable income to her. In the Eecles ease, the taxpayer’s wife was granted an interlocutory decree of divorce in the State of Utah, to become final after six months. The Tax Court held that under established Utah law, the taxpayer and his wife were still husband and wife until the final decree was entered, and were therefore entitled to file a joint income tax return covering the six months period under Section 51(b) of the Internal Revenue Code. In applying the reasoning of that case to the instant case, the Tax Court was of the opinion that although they arose under different sections of the Code, the basic question involved was the same. And, the law of Utah and Colorado in respect to the effect of interlocutory decrees of divorce being similar in text and construction, the reasoning in the Eccles case is apposite to the question involved here.
Chapter 56, Vol. 2, 1935 Colorado Stats. Annotated provides in part as follows: “§ 13. * * * If however, a divorce ought to be granted, the court shall enter an interlocutory decree, providing that the parties to such action shall be divorced six (6) months after the date of such interlocutory decree. During such six (6) months period the parties shall not be divorced and neither party shall contract another marriage during such period. During such period the court may, upon motion or petition of either party to the action, or upon its own motion, for good cause shown after a hearing, set aside such interlocutory decree. * * * ”
In construing this statute, the Colorado courts have consistently held that an interlocutory decree of divorce does not dissolve the marriage relationship nor alter the marital status; that during the period after the" interlocutory decree is entered, the parties might lawfully cohabit together as husband and wife, Doty v. Doty, 103 Colo. 543, 88 P.2d 573; that the action is immediately abated by death of one of the parties pri- or to the final decree of divorce, and a wife’s right to inherit her husband’s property survives an interlocutory decree of divorce. In re McLaughlin’s Estate, 117 Colo. 67, 184 P.2d 130.
Manifestly, under Colorado law, the parties here were not “divorced” upon entry of the interlocutory decree, but the Commissioner contends that the term “decree * * * of separate maintenance” as used in Section 22 (k) should be broadly construed to include all persons separated by some decree, regardless of the language used. It is argued that where, as here, a marriage has deteriorated to the point where the innocent spouse seeks the intervention of a court, and the court finds that the offending spouse has broken the marriage contract by his conduct and the innocent spouse is entitled as a matter of law to live separately without being guilty of desertion, then for the purposes of tax law, an “interlocutory decree of divorce” is in effect a “legal separation”.
Obviously, the terms “separate maintenance” and “interlocutory decree” as used in Colorado law are not synonymous. An interlocutory decree under Section 13, Chapter 56, C.S.A.1935, is intended to encourage a reunion of the parties — a healing of the breach — a period during which the parties may become reconciled; while “separate maintenance” under Section 25, Chapter 56 of the Colorado statute is intended to effect a permanent status — a final divorce from bed and board. Doty v. Doty, supra; 17 Am.Jur. p. 362, Sec. 435. Both of these terms have specific legalistic meanings, and if Congress had meant to include “interlocutory decree” in Section 22 (k), it certainly would have been a simple matter for it to do so. We agree with the Tax Court that an interlocutory decree under Colorado law is not “separate maintenance” within the meaning of Section 22 (k).
The decision is affirmed.
. “Section 22. Gross income. * * * * *
“(k) Alimony, etc., income. In the case of a wife who is divorced or legally separated from her husband under a decree of divorce or of separate maintenance, periodic payments (whether or not made at regular intervals) received subsequent to süeh decree in discharge of, or attributable to property transferred (in trust or otherwise) in discharge of, a legal obligation which, because of the marital or family relationship, is imposed upon or incurred by such husband under such decree or under a written instrument incident to such divorce or separation shall be includible in the gross income of such wife, and such amounts received as are attributable to property so transferred shall not be in-cludible in the gross income of such husband. * * * ”
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_fedlaw
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
Luba S. Kowalyszyn De MEDINA, Appellant, v. John E. REINHARDT, Director, United States International Communication Agency, et al. Carolee Brady HARTMAN, Individually and on Behalf of All Other Persons Similarly Situated, et al. Rose Kobylinski and Luba Medina, Appellants, v. John REINHARDT, Director United States International Communication Agency. Toura KEM, Luba Medina and Rose Kobylinski, Appellants, v. John REINHARDT, Director United States International Communication Agency.
Nos. 81-1909 to 81-1911.
United States Court of Appeals, District of Columbia Circuit.
Argued March 25, 1982.
Decided Aug. 27, 1982.
As Amended Aug. 27, 1982.
Bruce A. Fredrickson, Washington, D. C., for appellants.
Robert E. L. Eaton, Jr., Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., at the time the brief was filed, Royce C. Lamberth and Kenneth M. Raisler, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.
Before WRIGHT and WALD, Circuit Judges and ANTHONY J. CELEBREZZE, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit.
Opinion for the Court filed by Circuit Judge WALD.
Opinion concurring in part and dissenting in part filed by Senior Circuit Judge CELE-BREZZE.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
WALD, Circuit Judge:
These appeals contest the district court’s dismissal of consolidated individual and class sex discrimination claims against the Director of the United States International Communication Agency (“ICA” or “Agency”), formerly the United States Information Agency. Appellants contend that the district court (1) evaluated under inappropriate legal standards the statistical and testimonial evidence of a pattern and practice of discrimination in hiring, (2) failed to make required fact findings on the class promotion discrimination and retaliation claims, (3) improperly dismissed an individual claim for failure to exhaust administrative remedies, and (4) misapplied the requirements for a prima facie showing of discrimination to another individual claim. We find merit in certain of appellants’ objections and therefore remand the class claims and the individual claim of Rose Kobylinski for further consideration. We affirm, however, the district court’s dismissal of Luba Medina’s individual claim.
I. Background
In March 1977, Luba Medina, a former Agency employee, filed an individual claim for damages and declaratory and injunctive relief under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e-2000e-17. Her complaint alleged that, since 1974, the Agency had refused to rehire her in retaliation for her own prior charges of sex discrimination and her husband’s work on behalf of Agency minority employees. She also claimed that she had personally suffered from the Agency’s discriminatory practices against the foreign-born and women. In late 1977, another job applicant, who had been denied employment by the Agency earlier in the year, filed a Title VII class claim on behalf of female applicants and employees against whom the Agency had discriminated in hiring and promotion. In April 1978, the class was conditionally certified “to include all women who have applied for employment with or are currently employed by the United States Information Agency and who have been or continue to be adversely affected by the discriminatory employment practices of the defendant.” Joint Appendix (“J.A.”) at 22. Later that month, an Agency contract employee filed a complaint charging that she had been denied a permanent Agency position on account of sex. In November the three cases were consolidated. In the interim, the district court had permitted Medina and two Agency employees, Josefina Martinez and Rose Kobylinski, to intervene as named plaintiffs and had allowed plaintiffs to supplement the class complaint to include a claim that the Agency maintained “a practice of reprisals against women who have filed sex discrimination charges against the Agency.” J.A. at 28. On April 19, 1979, plaintiffs filed a motion for preliminary injunction to enjoin the defendant “from taking any retaliatory action against individuals who oppose the defendant’s discriminatory practices or otherwise exercise their rights under Title VII.” On May 16, the motion was denied orally without prejudice.
The parties agreed to bifurcate trial of the class claims into “liability” and “remedial” stages, and a bench trial on liability was conducted from May 29, 1979 through June 5, 1979. On October 24, 1979, the district court issued an opinion and order which redefined the class to exclude women in clerical positions and dismissed the class claims. Medina v. Reinhardt, Nos. 77-0360, 77-2019 & 78-0762 (D.D.C. Oct. 24, 1979) (Medina I), J.A. at 68.
Plaintiffs filed appeals on December 21, 1979, but on September 19, 1980, this court dismissed the appeals under Fed.R.Civ.P. 54(b) because the residual individual claims remained to be heard. Three of the named plaintiffs voluntarily dismissed their individual claims, and trial of Medina’s and Kobylinski’s claims was conducted on December 15 and 16, 1980. On June 15, 1981, the district court rendered its decision dismissing Medina’s claim on the merits and Kobylinski’s claim because she had failed to exhaust her administrative remedies. Medina v. Reinhardt, Nos. 77-0360, 77-2019 & 78-0762 (D.D.C. June 15,1981) (Medina II), J.A. at 118. This appeal followed.
II. The Class Claims
Although the district court’s “Findings of Fact” discussed rebuttal evidence as well as evidence introduced by plaintiffs to establish their threshold case, the court ruled in its “Conclusions of Law” that the plaintiff class had failed to establish “a prima facie case of discrimination on the basis of sex,” Medina I at 13, J.A. at 80. The court’s conclusion.rested primarily on rejection of both parties’ statistical studies on hiring patterns as “misleading due to a failure to define adequately the relevant labor market from which the Agency draws for qualified personnel,” id. at 3, J.A. at 70. The court’s objection was that the Census occupational categories used for comparison “with the jobs in issue at the Agency simply do not match.” Id. at 6, J.A. at 73. We find, however, that the district court’s opinion reflects a basic misperception of the relevancy and role of statistical evidence in the plaintiffs’ prima facie showing; hence, we remand for a redetermination of whether plaintiffs can make out a prima facie case of sex discrimination. Further, we must remand because the court made no findings or comment on plaintiffs’ evidence of Agency reprisals against women asserting their rights under Title VII.
Had the court credited either appellants’ or appellee’s definition of the relevant labor market, it would have found “disparities between the women employed at the Agency and the external labor pool of (1) Electronic Technicians, (2) Radio Broadcast Technicians, (3) Writers/Editors, and (4) Foreign Information Specialists.” Id. at 8, J.A. at 75. In 1977, when the class action was initiated, these four categories accounted for a major part of the Agency’s nonclerical positions. See, e.g., United States Information Agency FY-1978 Affirmative Action Report (Plaintiff’s Exhibit No. 22(b)). Consequently, on remand, the district court should reconsider whether these disparities alone or in combination with testimonial evidence are sufficient to raise an inference of discrimination in hiring and, if so, whether that inference was adequately rebutted. Upon remand, the court should also address the class retaliation claim.
A. Relevant Labor Market
The 1972 amendments to the Civil Rights Act of 1964 came in response to the “persistence of discrimination” and the consequent need for more effective enforcement, H.R.Rep.No.238, 92d Cong., 1st Sess. 3 (1971), U.S.Code Cong. & Admin.News 1972, p. 2137. The legislative history particularly focused on the seriousness of sex discrimination, id. at 4-5, and explicitly recognized the need “[t]o correct... entrenched discrimination in the Federal service.” Id. at 24, U.S.Code Cong. & Admin.News 1972, p. 2159. It is noteworthy that Congress itself relied on “statistical evidence” to prove the existence of sex discrimination in higher level government jobs.
Statistical evidence shows that minorities and women continue to be excluded from large numbers of government jobs, particularly at the higher grade levels.
This disproportionate distribution of minorities and women throughout the Federal bureaucracy and their exclusion from higher level policy-making and supervisory positions indicates the government’s failure to pursue its policy of equal opportunity. Id. at 23, U.S.Code Cong. & Admin.News 1972, p. 2158. See S.Rep.No.415, 92d Cong., 1st Sess., 421-23 (1971). Congress thus extended to federal employees the right to bring individual and class actions under Title VII.
In a Title VII suit, the claimant “carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that... the employer is treating ‘some people less favorably than others because of their race, color, religion, sex or national origin.’ ” Furnco Const. Corp. v. Waters, 438 U.S. 567, 576-77, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977)). When a plaintiff submits sufficient evidence to permit such an inference, Title VII gives it the status of a “legally mandatory, rebuttable presumption.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 n.7, 101 S.Ct. 1089, 1094 n.7, 67 L.Ed.2d 207 (1981). Because unlawful discriminatory intent is typically elusive of direct proof, Congress has deemed it appropriate to then require an explanation of the defendant.
In a sex discrimination class action charging disparate treatment, appropriate statistical comparisons may be used to indicate whether similarly situated men and women have been treated similarly, see, e.g., Valentino v. United States Postal Serv. (USPS), 674 F.2d 56, 69 (D.C.Cir.1982) (quoting Valentino v. United States Postal Serv., 511 F.Supp. 917, 940 (D.D.C.1980)), and, if not, whether the difference in treatment shown supports an inference of discriminatory intent. See, e.g., Teamsters, 431 U.S. at 325 n.15, 97 S.Ct. at 1854 n.15. Where specialized skills are legitimately required for employment, “[t]he proper comparison is between the composition of the [employer’s] work force and the qualified population.” Davis v. Califano, 613 F.2d 957, 963 (D.C.Cir.1979) (As Amended Feb. 14, 1980). See Valentino v. USPS, 674 F.2d at 68. (“When the job qualifications involved are ones that relatively few possess or can acquire, statistical presentations that fail to focus on those qualifications will not have large probative value.”) We have recently restated, however, that not every conceivable qualification for every separate job must be taken into account in making out a prima facie class claim of discrimination: “[T]he qualifications a Title VII plaintiff must grapple with... are threshold or ‘minimum objective’ qualification.” Id. at 71 n.24 (quoting Davis v. Califano, 613 F.2d at 964)). Thus, plaintiffs must identify the population likely to possess the minimum objective qualifications required of Agency employees (the relevant labor pool) and compare the proportion of women in that population with the proportion of women employed in the Agency. The comparisons in turn must show disparities of sufficient magnitude that they are statistically unlikely to have occurred by chance. We are then entitled to assume that “absent discriminatory employment practices, the proportion of the protected group in each of the job classifications and grade levels would approximate the proportion of the protected group with the minimum necessary qualifications.... ” Id. at 964. See, Teamsters, 431 U.S. at 339 n.20, 97 S.Ct. at 1856 n.20. Thus, statistically significant disparities between the composition of an employer’s work force and the labor pool from which the employer draws indicate that similarly situated people have been treated differently and “alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.” Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977).
Here, because the district court did not reach the issue, we have no occasion to consider whether the magnitude of the statistical disparities shown was adequate to infer discriminatory motive. We are concerned in this appeal only with whether there is “a basis for a reasonable assumption” that the comparison population was qualified for Agency positions. Metrocare v. Washington Metropolitan Area Transit Auth. (WMATA), 679 F.2d 922, 930 (D.C.Cir.1982). In this case, the experts testifying on both sides proceeded through trial on the assumption that the population sufficiently well-qualified to be employed in Agency occupational categories was the population employed in those same occupations outside the Agency. We think this is a reasonable threshold assumption which follows from the Supreme Court’s reasoning in Hazelwood School Dist. v. United States. In Hazelwood, a school district was charged with racial discrimination in teacher hiring, and United States Census data recording employment in the relevant occupational categories were used to calculate the disparities that formed the basis for plaintiffs’ prima facie case. The Supreme Court specifically approved the technique, noting that “[t]he comparative statistics... were properly limited to public school teachers, and therefore this is not a case... in which the racial-composition comparisons failed to take into account special qualifications for the position in question.” 433 U.S. at 308 n.13, 97 S.Ct. at 2742 n.13. Thus, Hazel-wood established that the proportion of a protected group actually employed elsewhere in the relevant occupation(s) is a meaningful measure of the proportion of the protected group qualified for employment by the defendant. The district court’s opinion here, however, raises the question whether there is too much diversity within the occupations involved in this case to permit reliance on the Hazelwood assumption as a basis for the plaintiffs’ prima facie showing. The district court concluded that the Census data used by the experts on both sides here was not sufficiently reflective of the qualifications required for Agency positions. The court insisted on “statistical data which matches those job categories at the Agency and the specific requirements thereof,” Medina I at 7, J.A. at 74 (emphasis supplied), and concluded in its “Findings of Fact”:
10.... The job categories used by the parties’ experts do not correspond with the jobs in the defendant Agency. Neither do plaintiffs’ nor defendant’s experts adequately explain that the tasks actually performed by the employees at the Agency, in the job categories analyzed, correspond in any more than a very general and speculative way to those utilized by the parties’ experts.
11. Cross-mapping of actual employee activities for purposes of comparison with statistics concerning available labor pools is appropriate and useful where the inquiry is of general non-specialized skills. While statistics are helpful and useful in many cases, it must be understood that it cannot be argued or found in this case that precise labor pool availability figures can be derived to determine the number of females available for employment in such specialized fields as, for example, Cambodian language news analyst/writer/broadcaster.
Id. at 8-9, J.A. at 75-76 (footnote omitted) (emphasis supplied).
While definition of the relevant labor market is normally reviewable under the “clearly erroneous” standard as an “essentially factual matter within the special competence of the district court,” Castaneda v. Pickard, 648 F.2d 989, 1003 (5th Cir. 1981); see Hazelwood, 433 U.S. at 312-13, 97 S.Ct. at 2744, “if the trial court bases its findings upon a mistaken impression of applicable legal principles, the reviewing court is not bound by the clearly erroneous standard.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc., - U.S. -, - n.15, 102 S.Ct. 2182, 2189 n.15, 72 L.Ed.2d 606 (1982). A close scrutiny of the legal underpinnings of the district court’s fact finding is appropriate here because the court’s decision was expressly based on its interpretation of the standard of proof enunciated in Hazelwood and Teamsters. The district court observed that Hazelwood “indicated that statistics comparing the employer’s work force and the relevant labor market must be based on the labor pool truly relevant to the employer’s potential work force,” and concluded that “the statistics suffer from the following deficiency, as noted by the Supreme Court in Teamsters : Imprecise definitions of the relevant labor market when particular qualifications are required for the job(s) in question.” Medina I at 12, J.A. at 79. We conclude, however, based on our examination of these cases, that the standard of precision the district court demanded, far from being mandated by these cases, is unprecedented and unjustifiable, insofar as it results in a total rejection of the Census data as a basis for statistical comparisons to establish a prima facie case.
The methods employed in this case by the experts on both sides to identify Census categories comparable to Agency positions, in fact, closely track that adopted in Hazel-wood and by other courts, see, e.g., Rivera v. City of Wichita Fails, 665 F.2d 531 (5th Cir. 1982); Croker v. Boeing Co. (Vertrol Div.), 437 F.Supp. 1138 (E.D.Pa.1977), aff’d, 662 F.2d 975 (3d Cir. 1981). Both experts subdivided the Agency work force into occupational categories and sought to translate each Agency category into Census terminology (“cross-map”) by reference to the U. S. Department of Commerce, Bureau of the Census, Alphabetical Index of Industries and Occupations (1971) (Defendant’s Exhibit No. 2) which lists “approximately... 23,000 occupation titles in alphabetical order.” Id. at iii. The Alphabetical Index explains the design of the Census classification system which groups those titles under some 440 occupational categories. Each category includes all the titles considered to be part of the same occupation.
To organize and make understandable the information relating to the many thousands of industries and occupations, a system of homogeneous grouping or classification must be used. Homogeneous titles are grouped together to form the various categories which comprise the system.... In this Index each title is identified by the code for that category to which it is assigned.
For example, plaintiffs’ expert explained the composition of the Census category “Editors and Reporters.”
Census Code 184, covering editors and reporters, is a list of about 100 titles which all fit into a journalistic type of occupational group, including just, for example, editor, feature writer, foreign correspondent, newspaper writer, and newspaper editor.
Trial Transcript (“Tr.”) at 82 (May 29,1979) (testimony of M. Rosenblum).
The defendant’s expert testified that in the “overwhelming majority of occupations” cross-mapping is accomplished by looking up the Agency position title in the Index and identifying the Census category to which it belongs. Tr. at 19 (June 1,1979) (testimony of S. Wolfbein). Where relevant Agency job titles were not included in the Alphabetical Index, defendant’s expert testified that he translated Agency categories into Census terminology based on job descriptions provided by the Agency. Tr. at 23 (June 1, 1979) (testimony of S. Wolfbein). Plaintiffs’ expert testified that he consulted job descriptions in order to cross-map all the relevant positions.
I consulted the 118 Manual to read the job description, as published by Civil Service, covering those Civil Service titles and codes that are used by all federal agencies.
In a number of these instances I also consulted material published by the Agency, itself, to augment and fill in additional descriptions.
So that I got a better sense in my own mind of specifically which Census occupational category would be appropriate for this cross-mapping exercise.
Tr. at 83 (May 29, 1979) (testimony of M. Rosenblum). Plaintiffs’ expert testified that he also consulted an Office of Personnel Management (“OPM”) study that translated white collar civil service jobs into Census terms, although he disagreed with OPM’s cross-mapping in one instance.
Because the Census has fewer occupational categories (approximately 440) than the more detailed Civil Service system (over 1,000), the cross-mapping necessarily involved fitting some Agency occupational categories at issue in the class action into broader Census categories. For example, based on Census coding, the defendant’s expert placed both the Agency positions entitled “Radio Broadcast Technician” and “Electronic Technician” in the Census category entitled “Electrical and electronic engineering technicians.” Tr. at 20, 93-94 (June 1, 1979) (testimony of S. Wolfbein). He also placed both “Writers/Editors” and “Foreign Information Specialists” in the Census category “Editors and Reporters.” Id. 103-04. We are satisfied that comparing Agency occupational categories to the broader Census categories is appropriate because all types of jobs the Census includes within any given Census occupational category are sub-specialties of that occupation; thus, such aggregations retain “generally similar job skills” in common. Valentino v. USPS, 674 F.2d at 68. (“The burden of comparing appropriate groups in terms of minimum objective qualifications, onerous here because of the disparate occupational categories involved, is far more tractable when all members of the class are professional, administrative or technical employees with generally similar job skills and seek [employment in or] advancement to positions involving those same skills.”). Our conclusion is supported in this case by the more refined cross-mapping attempted where Agency occupations involved skills arguably reflected in more than one Census occupational category. As we have pointed out, the experts agreed on the basic methodology involved in identifying the relevant labor pool although they disagreed as to which Census occupational category more properly encompassed certain Agency positions. As these disagreements came only in fine-tuning the comparisons, however, they do not deprive the statistics of probative value, but, in fact, enhance it since the disagreements caused the experts to focus on specific Agency job requirements and tasks and thus accomplish the cross-mapping with considerable attention to detail.
To the extent that the experts disagreed on the appropriate Census category to which Agency categories should be compared, we of course defer under the “clearly-erroneous” standard, see Fed.R.Civ.P. 52(a), to the district court’s judgment as to which comparison has the greater probative value. And, we would not second-guess the district court as to other areas of disagreement between the experts which the court did not decide, e.g., whether 1970 Census data or 1978 Labor Department data provided the appropriate set of figures. We decide only that the cross-mapping by both experts here provided an adequate basis from which to derive meaningful disparity figures in order to decide if a prima facie case of discrimination in hiring was made out.
A review of the statistical comparisons sanctioned in Hazelwood bolsters our conclusion that the district court imposed an inappropriately high standard of precision between Agency and Census job categories. The Hazelwood Court was satisfied with data that limited the relevant labor pool to those in the general Census occupational category of secondary school teachers although this data aggregated diverse teaching positions not subdivided on the basis of subject matter taught. Thus, the district court mistakenly relied on Hazel-wood for authority that plaintiffs must provide data comparing the labor market for every combination of skills required in every one of the more than 2,000 Agency jobs at issue. We do not believe a plaintiff is required to prove that each individual in the comparison pool is qualified in every way for a particular Agency position. The objective is to define “a population that closely approximates the characteristics of those who would be likely to apply” and “meet legitimate threshold qualification requirements.” D. Baldus & J. Cole, Statistical Proof of Discrimination 120 (1980) (emphasis supplied). The focus thus should be on whether the Census statistics give us a meaningful estimate of the proportion of women in the labor market reasonably likely to possess the minimum qualifications needed for the Agency jobs in question.
We agree with the district court that the ICA positions at issue are properly treated differently from the bulk of federal government jobs which are generally professional, administrative and managerial positions for which no differentiated training or educational standards are imposed as minimal qualifications. And we agree as well that the test was not met in a case like Valentino, where the statistics “did not group employees by job category,” 674 F.2d at 70, nor “hone in on the wide variety of minimum objective qualifications required of applicants for the diverse... positions” at issue. Id. at 61. In Valentino, where discrimination in promotion was charged, it would indeed have been “irrational to assume ‘equal qualifications’ to fill engineering or secretarial vacancies,” as the plaintiffs urged, simply because employees were “educated the same number of years and employed by the government for the same length of time.” Id. at 71. See also Metrocare v. WMATA, 679 F.2d at 980 (no showing that “persons now holding secretarial or clerical jobs are qualified for [promotion to] managerial positions”). The data in this case, however, did hone in on the basic technical skills — “the minimum objective qualifications," Valentino v. USPS, 674 F.2d at 68 (quoting Davis v. Califano, 618 F.2d at 964) — prerequisite to employment in particular Agency occupational categories. The expert testimony reveals the comparisons of Agency and Census occupational categories were based on common job requirements and were accomplished in some instances with much greater precision than in Hazel-wood. It should be noted again that in Hazelwood the comparison pool included public school teachers whether they taught, for example, natural science or a foreign language.
Therefore we do not deem it fatal to plaintiffs’ prima facie case that the Census occupational data failed to take account of foreign language skills prerequisite to employment in certain Agency positions. “[N]ot every conceivable factor relevant to [an employment] decision must be included in the statistical presentation.... ” Davis v. Calif ano, 613 F.2d at 964. See, e.g., Trout v. Hidalgo, 517 F.Supp. 873 (D.D.C.1981):
Certainly, plaintiffs’ expert did not, in his analysis, account for each of the factors that the government suggests should have been considered. It is also true that a model which incorporated additional potentially relevant factors (such as type or quality of education and experience) would form a more perfect foundation for determinations regarding allegations of discrimination. However, defendants have furnished no evidence that inclusion of the missing variables or refinement of others would have altered rejection of the hypothesis of no discrimination. Indeed, they failed to offer any evidence indicating that type of education and experience or quantity of experience per age was distributed unequally among... women and men in the... population.
517 F.Supp. at 881 (emphasis supplied).
Here, many, if not most, of the jobs involved do not require foreign language skills at all. Thus, to the extent that the district court rejected the statistics for failure to account for such skills, the court imposed an additional and unnecessary requirement for a large number of Agency positions. Further, with respect to positions which include specific foreign language skills among the minimum objective qualifications (e.g., “Cambodian language news analyst/writer/broadcaster”), the court articulated no basis for the assumption that such skills are in fact unevenly distributed between men and women generally or in the particular occupations involved. The more logical assumption, barring proof to the contrary, is that equal numbers of men and women possess skill in any given language; thus, the proportion of women qualified for Agency positions would not necessarily change if this variable were included in the occupational data. And, practically, statistical data, so far as we can tell from the record, are simply not available correlating 440 Census occupational categories with several dozen foreign language skills; in their absence, we think it appropriate here to afford plaintiffs the benefit of a rebuttable presumption of an equal distribution of the relevant language skills. We underline that we are dealing here with the showing necessary for a prima facie case only. “In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dept of Community Affairs v. Burdine, 450 U.S. at 225 n.8, 101 S.Ct. at 1094 n.8 (emphasis supplied). Exactness is not required at the prima facie stage. As a consequence, in rebuttal, a defendant need only raise “a genuine issue of fact as to whether it discriminated” and need not even “persuade the court that it was actually motivated” by nondiscriminatory reasons. Id. at 254,101 S.Ct. at 1094. The defendant here is certainly entitled to rebut plaintiffs’ showing with evidence, more readily available to it than to plaintiffs, that, as to certain jobs with foreign language requirements, there are disproportionately fewer qualified women candidates available or even that bona fide recruitment efforts have resulted in a proportionately lower number of qualified female applicants than men. Cf. EEOC v. Radiator Specialty Co., 610 F.2d 178, 185 n.8 (4th Cir. 1979) (“Requiring the defendant to show the inappropriateness of general population statistics in such situations follows the principle of allocation of proof to the party with the most ready access to the relevant information.”). We find it significant here, however, that the defendants themselves did not argue to the trial court that failure to control for language invalidated the occupational comparisons.
We therefore cannot accept the district court’s total rejection, as too imprecise, of both experts’ comparisons of Agency occupational categories with Census occupational categories. Were trial courts to apply Hazelwood and Teamsters as the court did here, statistical evidence would rarely be acceptable in Title VII class actions because statistical evidence is virtually always lacking in the degree of precision demanded by the district court. “[I]n most cases, conditions are far from ideal, with incomplete qualification data and non-random samples being the rule rather than the exception,” D. Baldus & W. Cole, supra, at 26-27. And yet the Supreme Court’s “cases make it unmistakably clear that ‘[statistical analyses have served and will continue to serve an important role’ in cases in which the existence of discrimination is a disputed issue.” Teamsters, 431 U.S. at 339, 97 S.Ct. at 1856 (quoting Mayor of Philadelphia v. Education Equality League, 415 U.S. 605, 620, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974)).
Thus relevant labor pool statistics are commonly used although it is rarely possible to be exact in the definition of the relevant labor pool. Sometimes imprecision works to the detriment of plaintiffs as well as defendants. For example, a comparison labor pool based on Census employment statistics does not include all those qualified. “[Census statistics analyzing the population by job skill include[] in each skill category only people actually employed in those skill categories. People qualified for, but not employed in, such positions [are] omitted from the statistics quantifying the proportion of the population eligible for the type of employment in question.” Rivera v. City of Wichita Falls, 665 F.2d at 544 n.19. Certain defects in statistical evidence may, of course, be fatal to a plaintiff’s case, as in Valentino where comparisons were grossly imprecise or in a case, hypothesized in Va lentino, where the sample size is inordinately small. Valentino v. USPS, 674 F.2d at 66 n.12 (citing Wilkins v. University of Houston, 654 F.2d 388, 409 n.37 (5th Cir. 1981)) (“[T]he breakdown of highly specialized workplaces into occupational categories for the purpose of examining the treatment of similarly qualified employees may yield numbers too small to conduct certain types of statistical analyses relied upon to show discrimination in workplaces less specialized.”) But because “statistical measures are necessarily imperfect in differing ways and varying degrees,” the courts generally “accept what figures are available; allow for imperfections, skewing factors, and margins of error; and then take the figures for what they are worth. Sometimes this is much, sometimes little.” Phillips v. Joint Legislative Committee on Performance and Expenditure Review, 637 F.2d 1014, 1025 (5th Cir. 1981), cert. denied,- U.S. -, 102 S.Ct. 2233, 72 L.Ed.2d 845 (1982).
In the usual case, statistics are not intended to “conclusively prove intentional discrimination.... In recognition of [the] limits on the potential of statistics as a basis for an inference, the courts have given statistical proofs a question-raising, burden-shifting function.” D. Baldus & W. Cole, supra, at 26-27. We find the base data here to be sufficiently precise and consistent with statistical and legal norms to permit an inference of discrimination if statistically significant disparities exist. We therefore remand for reconsideration of whether plaintiffs made a prima facie showing of Agency discrimination in hiring.
B. Required Findings
Plaintiffs also protest on appeal that, with respect to the class claims of promotion discrimination and retaliation, the district court’s opinion was deficient under Fed.R.Civ.P. 52(a) which requires that a court sitting without a jury “find the facts specially and state separately its conclusions of law thereon.” It is established that the requirement of fact findings cannot be met by a “statement of ultimate fact without the subordinate factual foundations for it which must be the subject of specific findings.” O’Neill v. United States, 411 F.2d 139, 146 (3d Cir. 1969). Further, the fact findings must touch all material issues. “For this court to exercise adequately its power of review, the district court must make specific findings about the nature and truth of [plaintiffs’] allegations.” Borrell v. ICA, 682 F.2d 981 at 992 (D.C.Cir.1982). Because the district court’s opinion is bereft of reference to the retaliation claim, we must remand for findings on this issue. We are satisfied, however, with the court’s findings on the promotion discrimination claim.
To support an inference of discriminatory promotion practices, the plaintiffs introduced undisputed government statistics showing the small percentage of women in higher level Agency positions. E.g., the Agency’s FY-1978 Affirmative Action Plan, Sec. C, Table 3 (Plaintiffs’ Exhibit No. 22(b)); U. S. Civil Service Commission, Report on Review of Personnel Management in the United States Information Agency (Plaintiffs’ Exhibit No. 23). The plaintiffs’ proposed findings of fact with respect to the promotion claim were based on this statistical evidence and they object on appeal that the district court’s opinion failed to include any reference to the data or the inferences to be drawn therefrom. We, too, find it troubling that, while the district court devoted five pages of fact findings to the statistical evidence related to the hiring discrimination claims, the court ignored the statistical evidence presented on the promotion claims. The court, however, acknowledged the allegation of promotion discrimination, stating the issue before it as “[w]hether the defendant’s hiring, promotion and salary practices constitute patterns or practices of discrimination.... ” Medina I at 3, J.A. at 70. And, although the court did not specifically discuss the statistical evidence on promotion practices, it made findings based on defendant’s testimonial evidence, concluding:
In addition to [defendant’s witnesses] very credible testimony, the fact that these women have attained the positions they now occupy, and have done so by rapid and consistent advancement, is dis-positive of the absence of any pattern or practice of discrimination based on sex at the Agency at all relevant periods in this litigation.
Medina I at 11, J.A. at 78. The “ultimate fact,” that there existed no pattern or practice of discrimination, was thus supported by the specific finding of instances of accelerated promotion of women and the credible testimony of women defense witnesses regarding the absence of discrimination in “the advancement of women in any manner.” Id. at
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_typeiss
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C
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the 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.
PORTER v. BENNISON et al.
No. 3999.
United States Court of Appeals Tenth Circuit.
March 6, 1950.
I. H. Spears, Detroit, Mich. (Thomas Campbell, Denver, Colo, on the brief) for appellant.
S. M. True, Denver, Colo. (G. E. Hendricks, Julesburg, Colo. on the brief) for appellees.
Before PHILLIPS, Chief Judge, and BRATTON ■ and PICKETT, Circuit Judges.
BRATTON, Circuit Judge.
This appeal is from the judgment of the United States Court for Colorado dismissing for want of jurisdiction an action instituted by Hereford B. Porter against Warren R. Bennison, Margarette Bennison, Lennette E. Bennison, G. W. Hendricks, individually and as administrator of the estate of George W. Mattingly, deceased, and First Trust Company of Lincoln, Nebraska.
It was alleged in the amended complaint that plaintiff was a citizen of Michigan; ihat defendants were citizens of Nebraska and Colorado; and that the amount in controversy was in excess of $3,000, exclusive of interests and costs. It was further alleged that George W. Mattingly, a Negro, died in 1924, leaving Jeannette Miller Breckenridge as his sole heir; that Jeannette Miller Breckenridge died in 1934, leaving plaintiff as her sole heir and beneficiary of the estate of Mattingly; that nineteen days prior to the death of Mattingly, and at a time when he was unconscious and sick unto death, Charles W. Bennison and I. T. McCaskey, white men, prepared and took to his room a paper purporting to be a will; that they took his hand and placed a mark on the paper as his signature; that under the terms of the will, the entire estate of Mattingly was devised and bequeathed to Bennison and McCaskey; that the will was fraudulently presented to the probate court of Butler County, Nebraska, for probate; that its admission to probate was brought about by false and fraudulent testimony; and that Charles C. Croswaithe was appointed administrator of the estate with the will annexed. It was further alleged that at the time of his death, the decedent owned certain lands in Sedgwick County, Colorado; that a certified copy of the will and the probate proceedings in Nebraska were filed in the county court of Sedgwick County, Colorado; that George W. Hendricks was appointed administrator of the estate in that state; that Croswaithe and Hendricks, with notice of the fraud inhering in the execution of the purported will and in the probate proceedings, took possession of money and property belonging to the estate and appropriated large amounts thereof to their own use and benefit; that the First Trust Company acted under the will with notice of the fraud; and that the rights asserted by the other defendants were acquired with notice of the fraud or with sufficient information to put the parties on notice thereof. It was further alleged that Jeannette Miller Breckenridge was not served with process in connection with the probate proceedings and did not have any notice thereof; and that plaintiff did not discover the fraud until less than three years prior to the institution of the action. And it was further alleged that the defendants, acting under color of state law, had deprived plaintiff of his property in violation of the Constitution of the United States and of certain federal statutes; and that the action was one arising under the Constitution and laws of the United States. The prayer was for judgment declaring defendants to be constructive trustees ex maleficio for the benefit of plaintiff; directing conveyance of the described lands to plaintiff; quieting title in plaintiff; an accounting; or in the alternative; damages.
It is contended that under Title 28, section 1331 of the United States Code Annotated, the court had jurisdiction of the action. The statute provides that the district courts shall have original jurisdiction of all civil actions arising under the Constitution or laws of the United States, and having more than $3,000 involved, exclusive of interest and costs. But not every question of federal law lurking in the background or emerging necessarily places the suit in the class of one arising under the Constitution or laws of the United States, within the meaning of the statute. A suit having for its purpose the enforcement of a right which finds its origin in the Constitution or laws of the United States is not necessarily and for that reason alone one arising under such laws. In order for a suit to be one arising under the Constitution or laws of the United States, it must really and substantially involve a dispute or controversy in respect of the construction or effect of a provision in the Constitution or the validity, construction, or effect of an Act of Congress, upon the determination of which the result depends. A right or immunity created by the Constitution or laws of the United States must be an essential element of plaintiff’s cause of action, and the right or immunity must be such that it will be supported if one construction or effect is given to the Constitution or laws of the United States and will be defeated if another construction or effect is given. And a genuine present controversy of that kind must be disclosed upon the face of the complaint. Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205; Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Regents of New Mexico College of Agriculture & Mechanic Arts v. Albuquerque Broadcasting Co., 10 Cir., 158 F.2d 900; Andersen v. Bingham & Garfield Railway Co., 10 Cir., 169 F.2d 328. Laying aside the allegations contained in the amended complaint which were mere conclusions of law, it is manifest that the pleading did not allege a cause of action arising under the Constitution or laws of the United States.
The further contention is that under Title 28, section 1332, of the United States Code Annotated the court was vested with jurisdiction of the action. The statute provides that the district courts shall have original jurisdiction of actions in which the amount in controversy exceeds $3,000, exclusive of interest and costs, and is between citizens of different states. Strong reliance is placed upon the case of Gaines v. Chew, 2 How. 619, 11 L.Ed. 402, to sustain the contention. There, the bill in equity filed in the United States Court for Louisiana alleged that the decedent executed two wills; that the later will was fraudulently suppressed or destroyed; that the earlier one was fraudulently tendered for probate and admitted to probate; and that the defendants, some of whom were executors under the earlier will and others were purchasers of property belonging to the estate, knew of the fraud. The prayer was revocation of the first will, effectiveness given to the second will, discovery, and an accounting. The court held that the later will would have to be established and admitted to probate before any rights could be asserted under it; that in Louisiana the court of probate had exclusive jurisdiction in the proof of wills; that in cases of fraud, equity has concurrent jurisdiction with a court of law, but in regard to a will charged to have been obtained through fraud, that rule does not obtain; and that the United States Court did not have jurisdiction in equity to carry the spoliated will into effect. However, the bill was upheld as a bill of discovery to assist complainants in their proofs before the probate court; and the court intimated that in the event the probate court should decline to exercise jurisdiction, and there shoffld not be any remedy in the higher courts of the state, the United States Court in the exercise of its equity jurisdiction might have inherent power to afford a remedy where the right was clear, by giving effect to the later will. But the court did not go further in that case. The case of In re Broderick’s Will, 21 Wall. 503, 22 L.Ed. 599, is indistinguishably similar to this one. That was an action in equity instituted in the United States Court for California by the alleged heirs at law of the decedent to have a purported will declared a forgery, to set aside the probate of the will and all subsequent proceedings had in the probate court, to have those deraigning title to property under the will charged as trustees for complainants, to compel conveyance to complainants of property belonging to the estate, and for general relief. The court said that the probate courts in California were vested with exclusive jurisdiction to probate wills, issue letters testamentary and of administration, and entertain all cognate matters ■ usually incident to that branch of judicature; that every objection to the will or the probate thereof pleaded in the bill could have been raised in the probate court; and that the relief sought by declaring the purchasers trustees for the benefit of complainants would have been fully compassed by denying probate of the will. There was diversity of citizenship and the amount in controversy exceeded that which was requisite for jurisdiction, but it was held that the bill failed to state ■ a cause of action for equitable interference with the probate of the will or for establishing a trust as against the purchasers from the estate for the benefit of complainants. And Sutton v. English, 246 U.S. 199, 38 S.Ct. 254, 62 L.Ed. 664, is equally apposite. There all of the heirs at law of Moses Hubbard and Mary Jane Hubbard, deceased, except Cora D. Spencer, filed in the United States Court for Texas their bill in equity. Cora D. Spencer was joined as a party defendant. The bill set up diversity of citizenship and the fact that the 'amount in controversy exceeded that which was requisite for jurisdiction. The objects of the action were to treat the joint will of Moses Hubbard and Mary Jane Hubbard as inefficacious to dispose of their community property; to set aside a judgment said to have been obtained in the district court of the state by English and others, devisees under the will, establishing their title to the community property as against Mary Jane Hubbard; to have the will of Mary Jane Hubbard, at least to the extent that a certain paragraph thereof gave and bequeathed the residue of her property to Cora D. Spencer, decreed not to be a testamentary disposition of that portion of the estate of the testatrix which had been community property; and to have the property constituting the separate estate of Mary Jane Hubbard and not having been effectively devised by her, be decreed to have passed to complainants as her heirs at law. It was held that the county courts in Texas had the general jurisdiction of probate courts, with power to probate wills, grant letters testamentary or of administration, and settle accounts of executors and administrators; that the county courts had exclusive original jurisdiction to entertain proceedings seasonably instituted to contest the validity of wills; that an essential feature of the cause of action stated in the bill was to annul the will of Mary Jane Hubbard, which under the laws of Texas was merely supplemental to the proceedings for the probate of her will and was cognizable only in the county court; and that therefore the cause of action pleaded in the bill was not within the jurisdiction of the courts of the United States.
As we understand the law of Nebraska, the county courts in that state are clothed with exclusive original jurisdiction in all matters relating to the probate of wills, including the vacating of an order admitting a will to probate for fraud, or on other grounds. It is our further understanding that the district courts of that state, under their general grant of equity jurisdiction, do not have original jurisdiction to entertain in the first instance a proceeding in equity to declare a purported will to be a forgery, to vacate the probate of such a will, and to charge those deraigning title under a will of that kind trustees ex maleficio for the benefit of complainants. Sovereign Camp of Woodmen of the World v. Grandon, 64 Neb. 39, 89 N.W. 448; Brown v. Webster, 87 Neb. 788, 128 N.W. 635; In re Shierman’s Estate, 129 Neb. 230, 261 N.W. 155. And we understand the law of Colorado to be substantially the same in effect. Glenn v. Mitchell, 71 Colo. 394, 207 P. 84. The county court of Butler County, Nebraska, being clothed with exclusive original jurisdiction to entertain a proceeding to declare the will of Mattingly invalid for fraud, and to vacate the order admitting it to probate; and the county court of Sedgwick County, Colorado, being clothed with like exclusive original jurisdiction to vacate its order appointing an administrator in that state, the United States Court for Colorado, in the exercise of its general grant of jurisdiction based upon diversity of citizenship and the requisite amount in controversy, did not have jurisdiction to entertain the suit in equity pleaded in the amended complaint. In re Broderick’s Will, supra; Sutton v. English, supra.
The judgment is affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_casetyp1_2-3-1
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E
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - civil rights claims by prisoners and those accused of crimes".
Arnold I. KRAMER, Petitioner-Appellant, v. O.C. JENKINS, Warden, and United States Parole Commission, Respondents-Appellees.
No. 86-1849.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 16, 1986.
Decided Oct. 15, 1986.
Julius Lucius Echeles, Sharon C. Kramer, Chicago, Ill., for petitioner-appellant.
William F. Murphy, Asst. U.S. Atty., Anton R. Yalukas, U.S.A. Atty., Chicago, Ill., for respondents-appellees.
Before BAUER, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge.
This case is fated to be known as Kramer V, and V is probably not the highest Roman numeral we shall have to append to Kramer’s name. Kramer 1 was an unpublished order affirming Arnold Kramer’s convictions on four counts of wilfully failing to file income tax returns and one count of filing a false tax document. The district court imposed consecutive one-year terms on the misdemeanor failure-to-file counts and five years’ probation on the felony false-filing count. The total was four years in prison.
Kramer II was a collateral attack on Kramer I. Kramer maintained that the district court had not complied with Fed.R. Crim.P. 32(c)(3)(D), which requires the court to resolve disputes about statements in the presentence report or to state in writing that he does not rely on the challenged statements. Kramer v. United States, 788 F.2d 1229 (7th Cir.1986). We concluded that the district court had not complied with Rule 32 concerning the statement in the presentence report that the IRS believed that Kramer evaded payment of some $329,000 in taxes. On remand the district court determined both that the statement was accurate — because the IRS indeed believed that Kramer owed the money, whether or not Kramer owed anything — and stated that he had not relied on the assertion. A motion to compel the district court to comply with our mandate led to the conclusion in Kramer III that Rule 32 is not satisfied by a finding that the government subjectively believes the assertions in the presentence report. Kramer v. United States, 798 F.2d 192 (7th Cir.1986). The district court’s alternative finding was sufficient compliance with the mandate, however, so we affirmed the district court’s action.
While all of this was going on, Kramer had a parole hearing. The Commission used the estimate of tax liability in the presentence report to conclude that Kramer’s offense should be classified in “Category 5” under the Parole Commission's guidelines. The Commission looks to the prisoner’s actual offenses, not solely to those of which he was convicted. 28 C.F.R. § 2.19(c). Category 5 includes tax offenses in which “the amount of the tax evaded or evasion attempted is more than $100,000 but not more than $500,000”. 28 C.F.R. § 2.20-501(b). Under the Commission’s guidelines a person with Kramer’s “salient factor score” (a compendium of personal characteristics) who commits a Category 5 offense ordinarily will be held for 24 to 36 months before parole. The Commission decided that Kramer should be treated as the guidelines recommend and kept for the full 36 months. The practical effect of this is a denial of parole, because if Kramer behaves in prison his good time credits (at the rate of seven days per month, 18 U.S.C. § 4161), will require his release soon after the 36-month mark no matter what.
On receiving the decision, Kramer filed an appeal to the National Appeals Board, which is the appellate arm of the Commission, see 18 U.S.C. § 4203(c)(4) and 28 C.F.R. § 2.26(a), and a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Kramer II had not yet been decided, and Kramer asserted that the Commission’s use of the presentence report violated the due process clause of the fifth amendment. He also asserted that he had not been given an adequate opportunity to respond to the information in the hearing examiners’ possession and that the evidence was insufficient to support the determination that he had evaded $100,000 or more in taxes. The case was assigned to a district judge other than the one responsible for Kramer’s sentence, so there were then three pending actions: before the National Appeals Board, before the habeas corpus judge, and before this court on appeal from the sentencing judge’s decision.
The National Appeals Board acted first. It affirmed the regional commissioner’s decision on February 6, 1986, without reference to the presentence report. The National Board’s full opinion says:
Commission has received an IRS Deficiency Notice confirming that your tax liability for the years 1976-1979 exceeded $300,000. This notice is treated by the Commission as a conclusive determination of your liability by the agency charged with such responsibility by law. The Commission declines to entertain further argument on the issue thus conclusively settled, and therefore has decided not to order a rehearing in your case. The Commission will not second-guess formal determinations of questions of fact by another agency which has expertise in a matter not possessed by this agency. Your remedy lies in the U.S. Tax Court, which can best decide the issue and best determine whether an expedited decision is warranted under the circumstances.
On May 6, 1986 — after Kramer II but before Kramer /// — the district court denied Kramer’s petition for a writ of habeas corpus. The court concluded that Kramer II had not “found the presentence investigation report invalid”, so that the Commission was entitled to rely on it. More, because the National Appeals Board had relied on the deficiency notice rather than the presentence report, the district judge concluded that Rule 32 was not important. The court rejected all of Kramer’s other arguments.
The appeal from this decision quickly produced Kramer IV, holding that Kramer was not entitled to release pending a disposition on the merits. Kramer v. Jenkins, 800 F.2d 708 (7th Cir.1986). It has also produced a lively motions practice, growing out of the following observations at the end of Kramer III:
We also defer to the district court’s factual finding that “the [Parole] Board apparently treated [Kramer] as if he were tried and convicted of income tax evasion, when in fact he was charged only with failure to file tax returns and with filing a false document with the IRS.” In order to correct this error, the Parole Board should only consider that portion of the presentence report which does not contain the amount Kramer allegedly owes. As the district court suggested, the “estimate” should be deleted and the Parole Board should take whatever steps are necessary to redetermine [Kramer’s] parole eligibility.
798 F.2d at 195, footnote omitted, first brackets in original. Kramer demanded that the Commission immediately redetermine his eligibility without regard to tax evasion. The Commission declined. The sentencing judge sent the Commission a letter emphasizing that the convictions were unrelated to tax evasion and that he had not relied on the presentence report; the Commission has not yet responded to this letter. And Kramer has filed with us a flurry of documents demanding immediate release — at a minimum an order that the Commission immediately recompute his eligibility — to which the Commission has replied that it was not a party to Kramer III and is not bound by our observations. All of the pending motions have been consolidated with the appeal in the habeas case for what has become Kramer V
We agree with the Commission that Kramer III does not require a new parole decision. The only question before the court was whether the district judge had complied with the mandate in Kramer II. The effect of a violation of Rule 32 on the Commission’s processes was not briefed in Kramer III; the panel, acting on Kramer’s motion without waiting for the government’s response, did not discuss any of the statutes governing the Commission’s conduct; the Commission was not a party. The issues in this appeal are open to fresh consideration.
Kramer II and III hold that the sentencing judge violated Rule 32(c) but cured the violation by disclaiming reliance on the presentence report’s estimate of tax liability and conveying that disclaimer to the Parole Commission. Kramer wants us to hold that the Commission itself may not consider the disclaimed information. We have some doubt whether an argument of this sort may be raised on collateral attack, given the holdings of United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), and United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). To obtain a writ of habeas corpus the petitioner must show that his “custody” is in violation of the Constitution or laws of the United States. Timmreck holds that a violation of the Rules of Criminal Procedure is not often (if ever) the same as illegal or unconstitutional custody; Addonizio holds that judges may not use collateral review to vindicate their “sentencing expectations” when the Commission denies parole to a person the judge believes should be released. We bypass this difficulty, however, because Kramer has not established that Rule 32 applies to the Commission.
The Rules of Criminal Procedure govern the proceedings in “courts”, see Fed.R.Crim.P. 1. The Advisory Committee’s notes to the 1983 amendments to Rule 32, which for the first time required judges to make factual findings or disclaim reliance, show that the committee was concerned about the use the Commission makes of presentence reports. The notes and the text of the Rule also show, however, that the device selected to deal with potential reliance on questionable statements was clarification or disclaimer in the district court, not an embargo on the transmission of presentence reports to the Commission. The Rule requires the district court to find the facts or let the Commission know that it found the report either too unreliable to be relied on or beside the point. In sum, the Rule “serves two important purposes: to ensure that a defendant receives a fair sentence, and that any subsequent persons who rely on the presentence report are aware of any inaccuracies.” United States v. Carmel, 801 F.2d 997, 1000 (7th 1986). See also United States v. Eschweiler, 782 F.2d 1385 (7th Cir.1986); United States v. Rone, 743 F.2d 1169 (7th Cir.1984).
The Commission, in turn, is free to use a disclaimed portion of the presentence report if it finds the information sufficiently accurate for its own purposes. After all, the judge has not found the allegations false; he has simply found them questionable or irrelevant for the purpose of sentencing. (We do not consider the effect of a finding by the court that an allegation is false. Such a finding may bind the Commission under doctrines of issue preclusion.) Doubtless a statement by the sentencing judge abjuring reliance is a flag of caution for the Commission. Under 18 U.S.C. § 4207(3), however, the Commission may use the presentence report — and under the rest of § 4207 much else besides. Because the Commission bases parole decisions on the entire offense behavior, and not just on the offenses charged in the indictment, it may legitimately have capacious standards of relevance and look to matters the court finds unnecessary to its own decision.
The absence of a limit in § 4207 or any rule leaves the Commission under only constitutional constraints. Sentencing courts may consider a vast range of information, including hearsay and offenses of which the defendant has not been charged. E.g., Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); United States v. Plisek, 657 F.2d 920 (7th Cir.1981). The Supreme Court has analogized parole officials to sentencing courts, free to use all available information and to decide without stating reasons. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). See also Solomon v. Elsea, 676 F.2d 282, 288 (7th Cir.1982). The district court’s decision that a piece of information is unimportant for his purposes — perhaps because the court has decided not to use information that he possessed discretion to use or disregard — does not conclude the question whether the same information is useful to the Commission. The Commission’s latitude under § 4207 allows it to make an independent judgment. So it was at liberty to use the presentence report initially, and the National Appeals Board was entitled to use the notice that contained the same underlying information.
The National Appeals Board did not simply “consider” the deficiency notice, however. It treated that notice as “conclusive”. Kramer insists that this goes too far, both because the Board would not listen to his objections to the estimate of his tax liability and because he never had an opportunity to respond to the deficiency notice, which was issued after his parole hearing. The latter argument is hypertechnical. Kramer has long been on notice of the position of the IRS and has put in his contrary view at every opportunity. The deficiency notice contains the same conclusions as the revenue agent’s report, which found its way into the presentence report. Kramer told the hearing examiners everything he had to tell. (The other factual matters considered by the hearing examiners are irrelevant, because the National Appeals Board did not rely on them.)
The Board’s treatment of the deficiency notice as “conclusive” is more troubling. We held in Solomon, 676 F.2d at 290, that the Commission’s decisions must have a “factual basis”. This followed from our conclusion that the parole statutes and regulations give federal prisoners a “liberty or property” interest in parole, within the meaning of the due process clause of the fifth amendment. Once statutes and rules give prisoners such an interest, the due process clause requires the government to have some reason for depriving the prisoner of his interest. Solomon has been reinforced by Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), which holds that when a state creates a system of good time credits sufficiently secure to amount to liberty or property, it may not take away the credits without a reason — a standard the Court variously described as “some evidence in the record” (105 S.Ct. at 2773) or “a modicum of evidence” (id. at 2774) or “any evidence in the record that could support the conclusion” (ibid.) or “some basis in fact” (ibid.). All of these are variations on the theme that administrative officials need a little evidence but not necessarily very much, a point the Court made when saying that the constitutional standard “does not require examination of the entire record ... or weighing of the evidence.” Ibid.
The Commission must have a reason for its decision. The record must show that the reason is not fanciful or suppositious. But the Commission need not hold adversarial proceedings or have the sort of evidence that would persuade a court. Greenholtz emphasizes the informality of the permissible proceedings. The Parole Commission and Reorganization Act of 1976 put judges out of the business of reviewing parole decisions for “substantial evidence” and the like by providing that parole decisions are “committed to agency discretion”, 18 U.S.C. § 4218(d), for purposes of the Administrative Procedure Act. The legislative history of the 1976 Act shows that Congress did not want the Commission to act like a court, or the courts to afford full-bore judicial review of the Commission’s decisions. See H.R.Conf.Rep. No. 94-838, 94th Cong., 2d Sess. 28 (1976), reprinted at 1976 U.S.Code Cong. & Admin. News 335, 360. The Commission has done more than the Constitution requires, adopting a preponderance-of-the-evidence standard for its decisions. 28 C.F.R. § 2.19(c). But courts do not review its decisions as if they were rendered by the Federal Energy Regulatory Commission; § 4218(d) sees to that. And they certainly do not hold de novo factual inquiries, as Kramer asked the district court to do. Even in cases under the Administrative Procedure Act the court is limited to review of the record before the administrative agency. See Chrysler Corp. v. Brown, 441 U.S. 281, 318, 99 S.Ct. 1705, 1726, 60 L.Ed.2d 208 (1979). Our review, with only a shadow of the scrutiny available under the APA, likewise is confined to the record before the Commission and limited to a search for “some evidence” in support of the decision.
No published opinion deals with the question whether the Commission may treat as binding the dispositions of the IRS. The limited scope of judicial review compels the conclusion that it may. The findings underlying the deficiency notice are “some evidence” of tax liability. They are more. The contents of the notice are presumed correct. Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212 (1933); Hintz v. CIR, 712 F.2d 281, 286 (7th Cir.1983). The IRS offers taxpayers an opportunity to discuss and present evidence on tax liability before it issues a deficiency notice. See 26 C.F.R. §§ 601.105, 601.106. A taxpayer has a right to notice, to discuss the case with and present evidence to an examiner, and to take an administrative appeal. This opportunity to be heard is at least as much as the Constitution demands for parole factfinding. See Greenholtz, 442 U.S. at 14-16, 99 S.Ct. at 2107-08. Kramer has been embroiled in controversy with the IRS for years and does not contend that the doors of the IRS were closed to him.
Once one agency of the government makes a finding, the Constitution does not require that the finding be subject to collateral attack in another agency. Quite the contrary, principles of administrative preclusion may bind agencies. See K.C. Davis, Administrative Law Treatise §§ 21.2, 21.3 (2d ed. 1983). Cf. University of Tennessee v. Elliott, --- U.S. ---, 106 S.Ct. 3220, 3225-27, 92 L.Ed.2d 635 (1986) (similar principles may require courts to follow administrative decisions). Kramer contends that loss carryforwards offset his income, so that he has not evaded taxes. A decision by the IRS concerning the validity of such a claim is more likely to be correct than is a decision by the Parole Commission on the same subject. The due process clause applies to the United States as an entity, and if the United States chooses to lodge in the IRS administrative decisions that may affect parole, the Constitution does not stand in the way any more than it would if Congress set up a “tax section” of the Commission to consider tax issues. If Kramer had argued that the administrative procedures of the IRS violate the due process clause, perhaps he would have been entitled to a determination by the Commission whether the IRS had done enough to make its findings conclusive. As we have observed, however, Kramer does not press such an argument.
All of this said, we are not entirely content with the upshot. Kramer has been sent to the Tax Court, where the suit that may become Kramer VI is pending. The Tax Court may or may not act in time to do Kramer any good. We trust it will expedite things but have no authority to insist on this. By the time it acts and Kramer has his opportunity for review in the court of appeals {Kramer VII?), his sentence may be over. The speed of the law is deliberate, maybe too deliberate for someone who wants out now and will be released in 18 months no matter what the Tax Court does. It is troubling, too, that the Commission does not have any formal procedure to change its decision if the Tax Court should say that the IRS was wrong. The Commission has set Kramer’s case for review in February 1987, but if the Tax Court acts (in Kramer’s favor) sooner, or one day later, Kramer’s only recourse under the Commission’s rules is to send a plaint by mail and hope someone pays attention. A Commission that relies completely on the findings of the IRS ought to have in place some speedy and automatic way to recompute parole in response to changes in those findings.
The Commission should give serious thought to the problems that may arise out of deference to other agencies coupled with delay. Today’s judicial role is limited, however. Having found that the reliance on the deficiency notice did not violate the Constitution, we must affirm the district court’s decision denying the petition for habeas corpus. (Kramer’s remaining arguments are irrelevant given the turn the National Appeals Board took.) If the IRS, the Tax Court, or this court should reevaluate Kramer’s tax liability, and the Commission should remain impassive, it would become necessary to decide how quickly the Commission must react to changed findings. There is now no case or controversy on that score, and our concerns about the adequacy of the procedures in place do not entitle Kramer to any relief.
Affirmed
Question: What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"?
A. suit for damages for false arrest or false confinement
B. cruel and unusual punishment
C. due process rights in prison
D. denial of other rights of prisoners - 42 USC 1983 suits
E. denial or revocation of parole - due process grounds
F. other denial or revocation of parole
G. other prisoner petitions
H. excessive force used in arrest
I. other civil rights violations alleged by criminal defendants
Answer:
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songer_counsel2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Oliver S. BROWN, et al., Plaintiffs, v. PHILLIPS PETROLEUM COMPANY, etc., et al., Defendants-Appellants, Mobil Oil Corporation, et al., Defendants, Ashland Oil, Inc., et al., Defendants-Appellees.
Nos. 85-1788, 85-1789, 85-1892 and 85-1912.
United States Court of Appeals, Tenth Circuit.
Feb. 3, 1988.
Rehearing Denied March 2, 1988.
Richard C. Hite and Steven D. Gough, (W.A. Kahrs of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, Kan., and Charles T. Krol and Mary S. Haskins, Denver, Col., with them on the briefs), of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, Kan., for defendant-appellant and cross-appellee, Amoco Production Co.
John A. Rayll, Jr. and Craig A. Coulter, of Coulter & Rayll, Tulsa, Okl., Stanford J. Smith, Jr. and Alan G. Metzger, of Robbins, Tinker, Smith & Metzger, Wichita, Kan., and Graydon D. Luthey, of Cities Service Oil and Gas Corp., Tulsa, Okl., on briefs, for defendant-appellant and cross-appellee, Cities Service Oil and Gas Corp.
Joseph W. Kennedy and Robert W. Coy-kendall, of Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, Kan., and John L. Williford and Don L. Jemison, of Phillips Petroleum Co., Bartlesville, Okl., on the briefs, for defendant-appellant and cross-appellee, Phillips Petroleum Co.
Gerald Sawatzky (Robert C. Foulston and Jim H. Goering, of Foulston, Siefkin, Powers & Eberhardt, and Richard Jones, Jerome E. Jones, and Robert J. O’Connor, of Hershberger, Patterson, Jones & Roth, Wichita, Kan., with him on the briefs), of Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., for defendants-appellees, Ashland Oil, Inc., Atlantic Richfield Co., Cabot Petroleum Corp., Damson Oil Corp. (formerly Dorchester Gas Producing Co.), Helmerich & Payne, Inc., Texaco, Inc., Diamond Shamrock Corp., Mapo Production Co., Mobil Oil Corp., Superior Oil Co., Gulf Oil Co., Lessee Producer Class, and cross-appellant, Ashland Oil, Inc.
Before McKAY, TACHA, and BALDOCK, Circuit Judges.
TACHA, Circuit Judge.
This case arises out of a complex series of cases that has been in litigation since the early 1960s. The underlying cases involve generally the ownership and valuation of helium extracted by National Helium Corporation and sold to the federal government from 1963 to 1973. The only issues on appeal and cross-appeal in this case are (1) whether the trial court abused its discretion in awarding attorneys’ fees on the basis of a percentage of a common fund, and (2) whether Ashland Oil is precluded from recovering a share of the common fund because of a prior holding of this court. We affirm the court’s award of attorneys’ fees and hold that Ashland Oil is not precluded from recovering from the common fund. We remand for a determination of appropriate attorneys’ fees in the cross-appeal.
The issues litigated in this series of cases related to right to payment for and valuation of helium extracted from natural gas from the Hugoton and Panhandle areas of Kansas, Oklahoma, and Texas. The parties in this appeal are members of the class of lessee producers who obtained judgment in 1983 establishing that they were entitled to a specified amount for the helium extracted by National Helium Corporation. National Helium Corp. v. Panhandle Eastern, No. KG-1980 (D.Kan. Nov. 3, 1983). After appeals were taken from that judgment, the parties settled the protracted controversy by agreeing to payment for the helium at a rate of $3.60 per thousand cubic feet plus interest. That settlement agreement requiring National Helium to pay approximately ninety-one million dollars was submitted to the court on October 16, 1984. The landowners’ share of the settlement was approximately sixteen million dollars and the lessee producers’ share was approximately seventy-five million dollars. Several law firms that represented various lessee producers and had represented the class of lessee producers through most or all of the class action litigation filed applications for attorneys’ fees and expenses to be paid from the lessee producers’ common fund recovery of seventy-five million dollars. These law firms (class counsel) represented appellees and cross-appellants in this case. The fee applications were accompanied by reconstructed time records and other documentation of time spent and work performed. The applications sought attorneys’ fees in addition to payments the attorneys had received throughout the course of the litigation.
After appropriate notice to the producer class members and landowners, the trial court held hearings on a motion to approve the settlement agreement and on the applications for attorneys’ fees and litigation expenses. Appellants in this case, three lessee producers, opposed the fee applications. The district court approved the settlement agreement and awarded class counsel an amount equal to 16.5% of the lessee producers’ seventy-five million dollar share of the common fund. Appellants challenge the court’s decision to award attorneys’ fees based on a percentage of the common fund. They claim that the award should have been based upon an analysis of the hours reasonably spent multiplied by a reasonable hourly rate.
I.
An award of attorneys’ fees is a matter uniquely within the discretion of the trial judge who “has intimate knowledge of the efforts expended and the value of the services rendered.” United States v. Anglin & Stevenson, 145 F.2d 622, 630 (10th Cir.1944), cert. denied, 324 U.S. 844, 65 S.Ct. 678, 89 L.Ed. 1405 (1945). We view the award here in the context of approximately twenty-five years of litigation including several state and federal district court cases, at least six appeals to this circuit, massive discovery and evidentiary development, and several thousand docket entries. The total record of related cases in this matter is among the largest ever amassed in this circuit. Perhaps most significantly for the questions before us, the district court judge who determined the attorneys’ fee award was involved in substantially all of this litigation. His experience with and knowledge about the course of the litigation compels appellate court deference to his determination in the absence of an abuse of discretion. Lucero v. City of Trinidad, 815 F.2d 1384, 1386 (10th Cir.1987).
The fee the trial court establishes must be reasonable. In statutory fee cases “the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). This formulation, generally known as the lodestar method, provides the starting point for appellate court review of statutory fee awards to determine whether a trial court has abused its discretion. The trial court in this case expressly did not rely on a lodestar analysis of class counsel’s fee application. Failure to rely, to some extent, on a reasonable lodestar analysis would in most statutory fee cases constitute an abuse of discretion. Ramos v. Lamm, 713 F.2d 546, 552-57 (10th Cir.1983). Here we must first decide whether a fee award based on a percentage of a common fund, in a case not involving statutory fees, is per se unreasonable. If it is not, we must then determine whether the trial court in this case abused its discretion nonetheless.
The Supreme Court has, in our judgment, answered the first question presented here. In Blum v. Stenson, a statutory fee case, the Court stated: “Unlike the calculation of attorney’s fees under the ‘common fund doctrine’ where a reasonable fee is based on a percentage of the fund bestowed on the class, a reasonable fee under § 1988 reflects the amount of attorney time reasonably expended on the litigation.” 465 U.S. 886, 900, n. 16, 104 S.Ct. 1541, 1550, n. 16, 79 L.Ed.2d 891 (1984) (emphasis added). Not only does this language implicitly recognize basic differences in the rationale for calculating attorneys’ fees in common fund cases, but the Court also explicitly described a percentage calculation as a “reasonable fee” in those cases. We hold, therefore, that the award of attorneys’ fees on a percentage basis in a common fund case is not per se an abuse of discretion.
The award of attorneys’ fees is based on substantially different underlying purposes in a common fund case than in a statutory fees case. The common fund doctrine “rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its costs are unjustly enriched at the successful litigant’s expense.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980). Common fund fees derive in part from the common law premise that a trustee is entitled to reimbursement from the fund administered. Trustees v. Gree-nough, 105 U.S. (15 Otto) 527, 532, 26 L.Ed. 1157 (1881). Fees in common fund cases are extracted from the predetermined damage recovery rather than obtained from the losing party. Thus, common fund fees are neither intrinsically punitive nor designed to further any statutory public policy. Conversely, statutory fees are intended to further a legislative purpose by punishing the nonprevailing party and encouraging private parties to enforce substantive statutory rights. See H. Newberg, Attorney Fee Awards, § 2.06 (2d ed. 1986); see generally, Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 FRD 237 (1985). Thus, unlike statutory fees, which result in a shifting of the fee burden to the losing party, common fund fees result in a sharing of the fees among those benefited by the litigation. As the footnote in Blum recognizes, another important difference is that normally a large number of people or entities benefit from a common fund case while the number benefited is not “a consideration of significance in calculating in the award of statutory attorneys’ fees.” Blum, 465 U.S. at 900 n. 16, 104 S.Ct. at 1550 n. 160.
Notwithstanding these differences, the percentage reflected in a common fund award must be reasonable; and, as in the statutory fee cases, the district court must “articulate specific reasons for fee awards to give us an adequate basis,” Ramos, 713 F.2d at 552, to review the reasonableness of the percentage and thus the reasonableness of the fee award. To determine reasonableness, federal courts have relied heavily on the factors articulated by \the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), in calculating and reviewing attorneys’ fees awards. See e.g. Ramos, 713 F.2d at 552. Because these factors measure the attorneys’ contributions, they are also appropriate in setting and reviewing percentage fee awards in common fund cases. The Johnson factors are: (1) the time and labor involved; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) any prearranged fee — this is helpful but not determinative; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F.2d at 717-19.
The trial court in this case found
that the amount represented by this percentage is reasonable and is required to adequately compensate such counsel for the legal services performed in this litigation for the following reasons: The extraordinary complexity and protracted nature of this helium litigation since July, 1963; the amount of time spent by each of counsel as reflected in the evidence, which evidence is accepted by the Court; the high quality of the service performed; the novelty of the issues; the number of adverse parties and the quality of opposing counsel; the vast number of hotly contested issues at all stages of this litigation; the number of cases, hearings, appeals and other proceedings conducted by counsel, the vast number of documents, exhibits, records and other materials required to be reviewed, analyzed; the vast amounts of legal research required on many novel substantive and procedural issues; the nature of the arrangements by such counsel for payment from clients of only minimal or subsistence fees pending conclusion of the cases and the highly contingent right of recovery from the inter-pleader fund in view of the debatable legal issues relating to liability and valuation; the skill and tenacity of counsel in conducting settlement negotiations and in refusing to accept very substantial and appealing, but inadequate, settlement offers at an earlier time; the enormously beneficial result conferred thereby upon the members of the Class. Such legal services were performed without unnecessary duplication and in an efficient manner.
There is ample evidence in the record to support each of the reasons relied upon by the trial judge. The court here clearly considered all of the relevant Johnson factors and applied them appropriately. The trial judge considered the time and work involved. The record contains documentation supporting the time claims. The court records in this litigation attest to the novelty and difficulty of the questions presented. This trial judge personally observed many of the relevant stages of this series of cases and thus was in a unique position to judge the skill requisite to perform the legal service properly as well as the experience, reputation, and ability of the attorneys. The court specifically relied on these factors in establishing the percentage. The record contains evidence that a substantial portion of the work of class counsel for many years was devoted to these cases, and thus precluded or reduced their opportunity for other employment. The “customary fee” factor in a common fund case is the same as the factor suggesting consideration of awards in similar cases. We note that a review of other federal common fund cases demonstrates that a 16.5% attorneys’ fee award is clearly within the range of awards deemed reasonable by other courts in similar or less lengthy and less complex cases.
The facts underlying both the “time limitations” factor and the “length of the professional relationship with the client” factor are evident from the remarkable length of class counsel’s representation and the litigation itself. Finally, as we have observed, a decisive factor in this common fund class action case is the amount involved and the results obtained. In evaluating this factor the trial judge appropriately balanced the interests of the beneficiaries in light of the efforts of counsel on their behalf.
Although the Johnson factors are relevant in determining a reasonable fee in a common fund case, the inherent differences between statutory fee and common fund cases could justify a trial judge’s decision to assign different relative weights to those factors in the two types of cases. For example, the first factor—time and labor required—is an essential touchstone for recovery in a statutory fee case where reasonableness is measured in part by reference to the lodestar analysis. In a common fund case, however, although time and labor required are appropriate considerations, the ninth Johnson factor—the amount involved and the results obtained— may be given greater weight when, as in this case, the trial judge determines that the recovery was highly contingent and that the efforts of counsel were instrumental in realizing recovery on behalf of the class. We recognized in Ramos, 713 F.2d at 552, that rarely are all of the Johnson factors applicable; this is particularly so in a common fund situation. We hold here only that in awarding attorneys’ fees in a common fund case, the “time and labor involved” factor need not be evaluated using the lodestar formulation when, in the judgment of the trial court, a reasonable fee is derived by giving greater weight to other factors, the basis of which is clearly reflected in the record.
We are mindful of the subjective nature of the determination a trial judge must make when an award is not anchored in the seemingly more objective lodestar formula. The trial judge in a common fund case must “act as a fiduciary for the beneficiaries” of the fund. Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237, 251 (1985). Attorneys’ fees necessarily reduce the amount that the common fund beneficiaries recover. Instead of serving as an arbiter in an adversarial setting, as is the case in a statutory fee controversy, the trial judge must determine a reasonable fee by weighing the appropriate interests of the beneficiaries in light of the efforts of counsel on their behalf. The need for meaningful appellate review in these cases requires the trial court to articulate clearly the factors and supporting evidence that it relies upon. The trial judge in this case met this requirement. We find no abuse of discretion in the award of an amount equal to 16.5% of the common fund where the relevant Johnson factors were considered and the court’s determination is supported by evidence in the record.
II.
One of the cases not tried by this trial judge and the subject of the cross-appeal was Ashland Oil, Inc. v. Phillips Petroleum Co., 364 F.Supp. 6 (N.D.Okla.1973), which was filed in the Northern District of Oklahoma and resulted in this court’s en banc decision approving the workback valuation method for valuing the helium. Ashland Oil Inc. v. Phillips Petroleum Co., 554 F.2d 381 (10th Cir.1975) (en banc), cert. denied, 434 U.S. 921, 98 S.Ct. 396, 54 L.Ed.2d 278 (1977). This method was then employed in the remainder of the cases that were tried in the district court in Kansas.
Cross-Appellant, Ashland Oil Co. (Ash-land), seeks reversal of the district court’s determination that Ashland is foreclosed from seeking an award of fees and expenses because of this court’s holding in Ashland I. That case, however, was in a different posture than the case on appeal here. We denied an award of attorneys’ fees in 1975 because we construed the litigation at that time as “plain and simple commercial litigation” involving two competing parties — one of whom would recover against the other. Ashland, 554 F.2d at 392 (quoting F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 130, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974)). The posture of the case now is quite different: Ashland is one of several beneficiaries of a common fund. The amount of recovery against the liable parties is fixed.
Our analysis here of the purposes of attorneys’ fee awards in common fund cases as a form of fee sharing rather than fee shifting, demonstrates that a common fund case is quite different from simple commercial litigation where one party recovers from another and attorneys’ fees are generally not recoverable. Here Ash-land is not attempting to recover attorneys’ fees from Phillips in an amount over and above the amount of liability — such an attempt is precluded by this court’s Ashland I holding. Rather, Ashland is seeking attorneys’ fees out of an amount established as the total award. Thus, the percentage of the common fund recovery that Ashland now seeks differs markedly from the fee request considered by this court in Ashland I. Therefore, we hold that our Ashland I holding does not preclude Ash-land from receiving an award of attorneys’ fees and costs in this case if, in the opinion of the trial court, such an award is justified and warranted. We therefore reverse the district court on the cross-appeal and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED,
. In its final order the district court amended the portion of its proposed order that contained these findings. The court stated, however, that it intended only that its final order be "incorporated and integrated” with the affected part of the proposed order; there was no intent to supersede these findings and not only are they unaffected by the final order, but they clearly support it.
. See, e.g., In re New York City Municipal Securities Litigation, [1984 Transfer Binder] Fed.Sec.L. Rep. (CCH), Para 91,419 (S.D.N.Y.1984) (33%) [Available on WESTLAW, 1984 WL 2411]; In re Warner Communications Securities Litigation, 618 F.Supp. 735 (S.D.N.Y.1985), aff'd, 798 F.2d 35 (2d Cir.1986) (24.5%); Murphy v. Presly Co., [1981 Transfer Binder] Fed.Sec.L.Rep. (CCH), Para. 97,975 (C.D.Cal.1981) (22.7%); Van Gemert v. Boeing Co., 516 F.Supp. 412 (S.D.N.Y.1981) (37.3%); Bullock v. Kircher, 84 F.R.D. 1 (D.N.J.1979) (25.2%); Jezarian v. Csapo, 483 F.Supp. 385 (S.D.N.Y.1979) (23.7%); Valente v. Pepsico, Inc., [1979 Transfer Binder] Fed.Sec.L. Rep. (CCH), Para. 96,921 (D.Del.1979) (27%) [Available on WESTLAW, 1979 WL 1229]; and Rothfarb v. Hambrecht, 649 F.Supp. 183 (N.D.Cal.1986) (22%).
. Even though the "time and labor involved" factor does not necessarily anchor the determination of reasonable fees in the common fund situation, it is a relevant factor and the availability of contemporaneous time records enhances the trial court’s ability to properly evaluate it. The attorneys in this case did not consistently maintain contemporaneous time records. In part this failure must be attributed to the fact that such records were neither generally kept nor required during part of the period this litigation was pending.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_decisiontype
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION v. 203 NORTH LaSALLE STREET PARTNERSHIP
No. 97-1418.
November 2, 1998
Decided May 3, 1999
Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined, post, p. 458. Stevens, J., filed a dissenting opinion, post, p. 463.
Roy T. Englert, Jr., argued the cause for petitioner. With him on the briefs were Thomas S. Kiriakos and James C. Schroeder.
Patricia A. Millett argued the cause for as amicus curiae urging reversal. With her on the brief were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Wallace, William Ranter, and Bruce G. Forrest
Richard M. Bendix, Jr., argued the cause for respondent. With him on the brief were Malcolm M. Gaynor and Paul J. Gaynor.
Briefs of amici curiae urging reversal were filed for the American Bankers Association et al. by John J. Gill III, Michael F. Croity, and Christopher E. Chenoweth; for the American College of Real Estate Lawyers by Robert M. Zinman and Christopher F. Graham; for the American Council of Life Insurance by James A. Pardo, Jr., David G. Epstein, Brian C. Walsh, and Phillip E. Stano; and for Ronald Mann et al. by Mr. Mann, pro se, Robert K. Rasmussen, and Alan Schwartz.
amici curiae urging affirmance were filed for the National Association of Credit Management by Charles M. Tatelbaum and Elizabeth Warren; for National Small Business United et al. by Isaac M. Pa-chulski, K. John Shaffer, and Kenneth N. Klee; and for Bruce A. Markell, pro se.
Justice Souter
delivered the opinion of the Court.
The issue in this Chapter 11 reorganization case is whether a debtor’s prebankruptey equity holders may, over the objection of a senior class of impaired creditors, contribute new capital and receive ownership interests in the reorganized entity, when that opportunity is given exclusively to the old equity holders under a plan adopted without consideration of alternatives. We hold that old equity holders are disqualified from participating in such a “new value” transaction by the terms of 11 U. S. C. § 1129(b)(2)(B)(ii), which in such circumstances bars a junior interest holder’s receipt of any property on account of his prior interest.
rH
Petitioner, Bank of America National Trust and Savings Association (Bank), is the major creditor of respondent, 203 North LaSalle Street Partnership (Debtor or Partnership), an Illinois real estate limited partnership. The Bank lent the Debtor some $93 million, secured by a nonrecourse first mortgage on the Debtor’s principal asset, 15 floors of an office building in downtown Chicago. In January 1995, the Debtor defaulted, and the Bank began foreclosure in a state court.
In March, the Debtor tion for relief under Chapter 11 of the Bankruptcy Code, 11 U. S. C. § 1101 et seq., which automatically stayed the foreclosure proceedings, see § 362(a). In re 208 N. LaSalle Street Partnership, 126 F. 3d 955, 958 (CA7 1997); Bank of America, Illinois v. 208 N. LaSalle Street Partnership, 195 B. R. 692, 696 (ND Ill. 1996). The Debtor’s principal objective was to ensure that its partners retained title to the property so as to avoid roughly $20 million in personal tax liabilities, which would fall due if the Bank foreclosed. 126 F. 3d, at 958; 195 B. R., at 698. The Debtor proceeded to propose a reorganization plan during the 120-day period when it alone had the right to do so, see 11 U. S. C. § 1121(b); see also § 1121(c) (exclusivity period extends to 180 days if the debtor files plan within the initial 120 days). The Bankruptcy Court rejected the Bank’s motion to terminate the period of exclusivity to make way for a plan of its own to liquidate the property, and instead extended the exclusivity period for cause shown, under § 1121(d).
The value of the mortgaged property was less than the balance due the Bank, which elected to divide its under-secured claim into secured and unsecured deficiency claims under § 506(a) and § 1111(b). 126 P. 3d, at 958. Under the plan, the Debtor separately classified the Bank’s secured claim, its unsecured deficiency claim, and unsecured trade debt owed to other creditors. See § 1122(a). The Bankruptcy Court found that the Debtor’s available assets were prepetition rents in a cash account of $3.1 million and the 15 floors of rental property worth $54.5 million. The secured claim was valued at the latter figure, leaving the Bank with an unsecured deficiency of $38.5 million.
So far as we need be concerned here, the Debtor’s plan had these further features:
(1) The Bank’s $54.5 million secured claim would be paid in full between 7 and 10 years after the original 1995 repayment date.
(2) The Bank’s $88.5 million unsecured deficiency would be discharged for an estimated 16% of its present value.
(3) The remaining unsecured claims of $90,000, held by the outside trade creditors, would be paid in full, without interest, on the effective date of the plan.
(4) Certain former partners of the Debtor contribute $6,125 million in new capital over the course of five years (the contribution being worth some $4.1 million in present value), in exchange for the Partnership’s entire ownership of the reorganized debtor.
The last condition was an exclusive eligibility provision: the old equity holders were the only ones who could contribute new capital.
The Bank objected and, being the paired class of creditors, thereby blocked confirmation of the plan on a consensual basis. See § 1129(a)(8). The Debtor, however, took the alternate route to confirmation of a reorganization plan, forthrightly known as the judicial “cram-down” process for imposing a plan on a dissenting class. § 1129(b). See generally Klee, All You Ever Wanted to Know About Cram Down Under the New Bankruptcy Code, 53 Am. Bankr. L. J. 133 (1979).
There are two conditions for a cramdown. First, all requirements of § 1129(a) must be met (save for the plan’s acceptance by each impaired class of claims or interests, see § 1129(a)(8)). Critical among them are the conditions that the plan be accepted by at least one class of impaired creditors, see § 1129(a)(10), and satisfy the “best-interest-of-creditors” test, see § 1129(a)(7). Here, the class of trade creditors with impaired unsecured claims voted for the plan, 126 F. 3d, at 959, and there was no issue of best interest. Second, the objection of an impaired creditor class may be overridden only if “the plan does not discriminate unfairly, and is fair and equitable, with respect to each class of claims or interests that is impaired under, and has not accepted, the plan.” § 1129(b)(1). As to a dissenting class of impaired unsecured creditors, such a plan may be found to be “fair and equitable” only if the allowed value of the claim is to be paid in full, § 1129(b)(2)(B)(i), or, in the alternative, if “the holder of any claim or interest that is junior to the claims of such [impaired unsecured] class will not receive or retain under the plan on account of such junior claim or interest any property,” § 1129(b)(2)(B)(ii). That latter condition is the core of what is known as the “absolute priority rule.”
The absolute priority rule was the basis for the Bank’s position that the plan could not be confirmed as a cram-down. As the Bank read the rule, the plan was open to objection simply because certain old equity holders in the Debtor Partnership would receive property even though the Bank’s unsecured deficiency claim would not be paid in full. The Bankruptcy Court approved the plan nonetheless, and accordingly denied the Bank’s pending motion to convert the case to Chapter 7 liquidation, or to dismiss the case. The District Court affirmed, 195 B. R. 692 (ND Ill. 1996), as did the Court of Appeals.
The majority of the Seventh ambiguity in the language of the statutory absolute priority rule, and looked beyond the text to interpret the phrase “on account of” as permitting recognition of a “new value corollary” to the rule. 126 F. 3d, at 964-965. According to the panel, the corollary, as stated by this Court in Case v. Los Angeles Lumber Products Co., 308 U. S. 106, 118 (1939), provides that the objection of an impaired senior class does not bar junior claim holders from receiving or retaining property interests in the debtor after reorganization, if they contribute new capital in money or money’s worth, reasonably equivalent to the property’s value, and necessary for successful reorganization of the restructured enterprise. The panel majority held that
“when an old equity holder retains an equity interest in the reorganized debtor by meeting the requirements of the new value corollary, he is not receiving or retaining that interest ‘on account of’ his prior equitable ownership of the debtor. Rather, he is allowed to participate in the reorganized entity ‘on account of’ a new, substantial, necessary and fair infusion of capital.” 126 F. 3d, at 964.
In the dissent’s contrary view, there is nothing ambiguous about the text: the “plain language of the absolute priority rule... does not include a new value exception.” Id., at 970 (opinion of Kanne, J.). Since “[t]he Plan in this case gives [the Debtor’s] partners the exclusive right to retain their ownership interest in the indebted property because of their status as... prior interest holderfe],” id., at 973, the dissent would have reversed confirmation of the plan.
certiorari, 523 U. S. 1106 (1998), to resolve a Circuit split on the issue. The Seventh Circuit in this case joined the Ninth in relying on a new value corollary to the absolute priority rule to support confirmation of such plans. See In re Bonner Mall Partnership, 2 F. 3d 899, 910-916 (CA9 1993), cert. granted, 510 U. S. 1039, vacatur denied and appeal dism’d as moot, 513 U. S. 18 (1994). The Second and Fourth Circuits, by contrast, without explicitly rejecting the corollary, have disapproved plans similar to this one. See In re Coltex Loop Central Three Partners, L. P., 138 F. 3d 39, 44-45 (CA2 1998); In re Bryson Properties, XVIII, 961 F. 2d 496, 504 (CA4), cert. denied, 506 U. S. 866 (1992). We do not decide whether the statute includes a new value corollary or exception, but hold that on any reading respondent’s proposed plan fails to satisfy the statute, and accordingly reverse.
The terras “absolute priority rule” and “new value corollary” (or “exception”) are creatures of law antedating the current Bankruptcy Code, and to understand both those terras and the related but inexact language of the Code some history is helpful. The Bankruptcy Act preceding the Code contained no such provision as subsection (b)(2)(B)(ii), its subject having been addressed by two interpretive rules. The first was a specific gloss on the requirement of §77B (and its successor, Chapter X) of the old Act, that any reorganization plan be “fair and equitable.” 11 U. S. C. § 205(e) (1934 ed., Supp. I) (repealed 1938) (§77B); 11 U. S. C. §621(2) (1934 ed., Supp. IV) (repealed 1979) (Chapter X). The reason for such a limitation was the danger inherent in any reorganization plan proposed by a debtor, then and now, that the plan will simply turn out to be too good a deal for the debtor’s owners. See H. R. Boc. No. 93-137, pt. I, p. 255 (1973) (discussing concern with “the ability of a few insiders, whether representatives of management or major creditors, to use the reorganization process to gain an unfair advantage”); ibid. (“[I]t was believed that creditors, because of management’s position of dominance, were not able to bargain effectively without a clear standard of fairness and judicial control”); Ayer, Rethinking Absolute Priority After Aklers, 87 Mich. L. Rev. 963, 969-973 (1989). Hence the pre-Code judicial response known as the absolute priority rule, that fairness and equity required that “the creditors... be paid before the stockholders could retain [equity interests] for any purpose whatever.” Northern Pacific R. Co. v. Boyd, 228 U. S. 482, 508 (1913). See also Louisville Trust Co. v. Louisville, N. A & C. R. Co., 174 U. S. 674, 684 (1899) (reciting “the familiar rule that the stockholder’s interest in the property is subordinate to the rights of creditors; first of secured and then of unsecured creditors,” and concluding that “any arrangement of the parties by which the subordinate rights and interests of the stockholders are attempted to be secured at the expense of the prior rights of either class of creditors comes within judicial denunciation”).
the first. Its classic formulation occurred in Case v. Los Angeles Lumber Products Co., in which the Court spoke through Justice Douglas in this dictum:
“It is, of course, clear that there are circumstances under which stockholders may participate in a plan of reorganization of an insolvent debtor.... Where th[e] necessity [for new capital] exists and the old stockholders make a fresh contribution and receive in return a participation reasonably equivalent to their contribution, no objection can be made....
“[W]e believe that to accord ‘the creditor his full right of priority against the corporate assets’ where the debtor is insolvent, the stockholder’s participation must be based on a contribution in money or in money’s worth, reasonably equivalent in view of all the circumstances to the participation of the stockholder.” 308 U. S., at 121-122.
Although counsel for one of the parties here has described the Case observation as “ ‘black-letter’ principle,” Brief for Respondent 38, it never rose above the technical level of dictum in any opinion of this Court, which last addressed it in Norwest Bank Worthington v. Ahlers, 485 U. S. 197 (1988), holding that a contribution of “‘labor, experience, and expertise’ ” by a junior interest holder was not in the “ ‘money’s worth’ ” that the Case observation required. 485 U. S., at 203-205. See also Marine Harbor Properties, Inc. v. Manufacturers Trust Co., 317 U. S. 78, 85 (1942); Consolidated Rock Products Co. v. Du Bois, 312 U. S. 510, 529, n. 27 (1941). Nor, prior to the enactment of the current Bankruptcy Code, did any court rely on the Case dictum to approve a plan that gave old equity a property right after reorganization. See Ayer, supra, at 1016; Markell, Owners, Auctions, and Absolute Priority in Bankruptcy Reorganizations, 44 Stan. L. Rev. 69, 92 (1991). Hence the controversy over how weighty the Case dictum had become, as reflected in the alternative labels for the new value notion: some writers and courts (including this one, see Ahlers, supra, at 203-204, n. 3) have spoken of it as an exception to the absolute priority rule, see, e. g., In re Potter Material Service, Inc., 781 F. 2d 99, 101 (CA7 1986); Miller, Bankruptcy’s New Value Exception: No Longer a Necessity, 77 B. U. L. Rev. 975 (1997); Georgakopoulos, New Value, Fresh Start, 3 Stan. J. L. Bus. & Fin. 125 (1997), while others have characterized it as a simple corollary to the rule, see, e. g., In re Bonner Mall Partnership, 2 F. 3d, at 906; Ayer, supra, at 999.
Enactment of the Bankruptcy Act might have resolved the status of new value by a provision bearing its name or at least unmistakably couched in its terms, but the Congress chose not to avail itself of that opportunity. In 1973, Congress had considered proposals by the Bankruptcy Commission that included a recommendation to make the absolute priority rule more supple by allowing nonmonetary new value contributions. H. R. Doc. No. 93-137, pt. I, at 258-259; id., pt. II, at 242, 252. Although Congress took no action on any of the ensuing bills containing language that would have enacted such an expanded new value concept, each of them was reintroduced in the next congressional session. See H. R. 31, 94th Cong., 1st Sess., §§7-303(4), 7-310(d)(2)(B) (1975); H. R. 32, 94th Cong., 1st Sess., §§7-301(4), 7-308(d)(2)(B) (1975); S. 235, 94th Cong., 1st Sess., §§7-301(4), 7-30S(d)(2)(B) (1975); S. 236, 94th Cong., 1st Sess., §§7-303(4), 7-310(d)(2)(B) (1975). After extensive hearings, a substantially revised House bill emerged, but without any provision for nonmonetary new value contributions. See H. R. 6, 95th Cong., 1st Sess., §§1123, 1129(b) (1977). After a lengthy markup session, the House produced H. R. 8200, 95th Cong., 1st Sess. (1977), which would eventually become the law, H. R. Rep. No. 95-595, p. 3 (1977). It had no explicit new value language, expansive or otherwise, but did codify the absolute priority rule in nearly its present form. See H. R. 8200, supra, § 1129(b)(2)(B)(iv) (“[T]he holders of claims or interests of any class of claims or interests, as the ease may be, that is junior to such class will not receive or retain under the plan on account of such junior claims or interests any property”)-
For the purpose (b)(2)(B)(ii) in search of a possible statutory new value exception, the lesson of this drafting history is equivocal. Although hornbook law has it that “'Congress does not intend sub sileniio to enact statutory language that it has earlier discarded/ ” INS v. Cardoza-Fonseca, 480 U. S. 421, 442-448 (1987), the phrase “on account of” is not silentium, and the language passed by in this instance had never been in the bill finally enacted, but only in predecessors that died on the vine. None of these contained an explicit codification of the absolute priority rule, and even in these earlier bills the language in question stated an expansive new value concept, not the rule as limited in the Case dictum.
The equivocal note of this by another feature of the legislative advance toward the current law. Any argument from drafting history has to account for the fact that the Code does not codify any authoritative pre-Code version of the absolute priority rule. Compare § 1129(b)(2)(B)(ii) (“[T]he holder of any claim or interest that is junior to the claims of such [impaired unsecured] class will not receive or retain under the plan on account of such junior claim or interest any property”) with Boyd, 228 U. S., at 508 (“[T]he creditors were entitled to be paid before the stockholders could retain [a right of property] for any purpose whatever”), and Case, 308 U. S., at 116 (“ ‘[Creditors are entitled to priority over stockholders against all the property of an insolvent corporation’ ” (quoting Kansas City Terminal R. Co. v. Central Union Trust Co. of N. Y., 271 U. S. 445, 455 (1926))). See H. R. Rep. No. 95-595, at 414 (characterizing § 1129(b)(2)(B)(ii) as a “partial codification of the absolute priority rule”); ibid. (“The elements of the [fair and equitable] test are new[,] departing from both the absolute priority rule and the best interests of creditors tests found under the Bankruptcy Act”).
The upshot is that this history does nothing to disparage the possibility apparent in the statutory text, that the absolute priority rule now on the books as subsection (b)(2)(B)(ii) may carry a new value corollary. Although there is no literal reference to “new value” in the phrase “on account of such junior claim,” the phrase could arguably carry such an implication in modifying the prohibition against receipt by junior claimants of any interest under a plan while a senior class of unconsenting creditors goes less than fully paid.
r — ( 1 — H HH
Three basic interpretations have been suggested for the “on account of” modifier. The first reading is proposed by the Partnership, that “on account of” harks back to accounting practice and means something like “in exchange for,” or “in satisfaction of,” Brief for Respondent 12-13, 15, n. 16. On this view, a plan would not violate the absolute priority rule unless the old equity holders received or retained property in exchange for the prior interest, without any significant new contribution; if substantial money passed from them as part of the deal, the prohibition of subsection (b)(2)(B)(ii) would not stand in the way, and whatever issues of fairness and equity there might otherwise be would not implicate the “on account of” modifier.
This position is beset with troubles, the first one being textual. Subsection (b)(2)(B)(ii) forbids not only receipt of property on account of the prior interest but its retention as well. See also §§ 1129(a)(7)(A)(ii), (a)(7)(B), (b)(2)(B)(i), (b)(2)(C)(i), (b)(2)(C)(ii). A common instance of the latter would be a debtor’s retention of an interest in the insolvent business reorganized under the plan. Yet it would be exceedingly odd to speak of “retaining]” property in exchange for the same property interest, and the eccentricity of such a reading is underscored by the fact that elsewhere in the Code the drafters chose to use the very phrase “in exchange for,” § 112S(a)(5)(J) (a plan shall provide adequate means for implementation, including “issuance of securities of the debtor... for cash, for property, for existing securities, or in exchange for claims or interests”). It is unlikely that the drafters of legislation so long and minutely contemplated as the 1978 Bankruptcy Code would have used two distinctly different forms of words for the same purpose. See Russello v. United States, 464 U. S. 16, 28 (1983).
The Congress meant to impose a condition as manipulable as subsection (b)(2)(B)(ii) would be if “on account of” meant to prohibit merely an exchange unaccompanied by a substantial infusion of new funds but permit one whenever substantial funds changed hands. “Substantial” or “significant” or “considerable” or like characterizations of a monetary contribution would measure it by the Lord Chancellor’s foot, and an absolute priority rule so variable would not be much of an absolute. Of course it is true (as already noted) that, even if old equity holders could displace the rule by adding some significant amount of cash to the deal, it would not follow that their plan would be entitled to adoption; a contested plan would still need to satisfy the overriding condition of fairness and equity. But that general fairness and equity criterion would apply in any event, and one comes back to the question why Congress would have bothered to add a separate priority rule without a sharper edge.
Since the “in exchange way is open to recognize the more common understanding of “on account of” to mean “because of.” This is certainly the usage meant for the phrase at other places in the statute, see § 1111(b)(1)(A) (treating certain claims as if the holder of the claim “had recourse against the debtor on account of such claim”); §522(d)(10)(E) (permitting debtors to exempt payments under certain benefit plans and contracts “on account of illness, disability, death, age, or length of service”); § 647(b)(2) (authorizing trustee to avoid a transfer of an interest of the debtor in property “for or on account of an antecedent debt owed by the debtor”); § 547(c)(4)(B) (barring trustee from avoiding a transfer when a creditor gives new value to the debtor “on account of which new value the debtor did not make an otherwise unavoidable transfer to... such creditor”). So, under the eommonsense rule that a given phrase is meant to carry a given concept in a single statute, see Cohen v. de la Cruz, 523 U. S. 213, 219-220 (1998), the better reading of subsection (b)(2)(B)(ii) recognizes that a causal relationship between holding the prior claim or interest and receiving or retaining property is what activates the absolute priority rule.
is the final bone of contention. We understand the Government, as amicus curiae, to take the starchy position not only that any degree of causation between earlier interests and retained property will activate the bar to a plan providing for later property, Brief for United States as Amicus Curiae 11-15, but also that whenever the holders of equity in the Debtor end up with some property there will be some causation; when old equity, and not someone on the street, gets property the reason is res ■ipsa loquitur. An old equity holder simply cannot take property under a plan if creditors are not paid in full. Id., at 10-11,18. See also Tr. of Oral Arg. 28.
There are, however, reasons counting against a ing. If, as is likely, the drafters were treating junior claimants or interest holders as a class at this point (see Ahlers, 485 U. S., at 202), then the simple way to have prohibited the old interest holders from receiving anything over objection would have been to omit the “on account of” phrase entirely from subsection (b)(2)(B)(ii). On this assumption, reading the provision as a blanket prohibition would leave “on account of” as a redundancy, contrary to the interpretive obligation to try to give meaning to all the statutory language. See, e. g., Moskal v. United States, 498 U. S. 103, 109-110 (1990); United States v. Menasche, 348 U. S. 528, 538-539 (1955). One would also have to ask why Congress would have desired to exclude prior equity categorically from the class of potential owners following a cramdown. Although we have some doubt about the Court of Appeals’s assumption (see 126 F. 3d, at 966, and n. 12) that prior equity is often the only source of significant capital for reorganizations, see, e. g., Blum & Kaplan, The Absolute Priority Doctrine in Corporate Reorganizations, 41 U. Chi. L. Rev. 651, 672 (1974); Mann, Strategy and Force in the Liquidation of Secured Debt, 96 Mich. L. Rev. 159, 182-183, 192-194, 208-209 (1997), old equity may well be in the best position to make a go of the reorganized enterprise and so may be the party most likely to work out an equity-for-value reorganization.
statutory prohibition would follow from reading the “on account of” language as intended to reconcile the two recognized policies underlying Chapter 11, of preserving going concerns and maximizing property available to satisfy creditors, see Toibb v. Radloff, 501 U. S. 157, 163 (1991). Causation between the old equity’s holdings and subsequent property substantial enough to disqualify a plan would presumably occur on this view of things whenever old equity’s later property would come at a price that failed to provide the greatest possible addition to the bankruptcy estate, and it would always come at a price too low when the equity holders obtained or preserved an ownership interest for less than someone else would have paid. A truly full value transaction, on the other hand, would pose no to the bankruptcy estate not posed by any reorganization, provided of course that the contribution be in cash or be realizable money’s worth, just as Ahlers required for application of Case’s new value rule. Cf. Ahlers, supra, at 203-205; Case, 308 U. S., at 121.
IV
Which of these positions is ultimately entitled to prevail is not to be decided here, however, for even on the latter view the Bank’s objection would require rejection of the plan at issue in this case. It is doomed, we can say without necessarily exhausting its flaws, by its provision for vesting equity in the reorganized business in the Debtor’s partners without extending an opportunity to anyone else either to compete for that equity or to propose a competing reorganization plan. Although the Debtor’s exclusive opportunity to propose a plan under § 1121(b) is not itself “property” within the meaning of subsection (b)(2)(B)(ii), the respondent partnership in this case has taken advantage of this opportunity by proposing a plan under which the benefit of equity ownership may be obtained by no one but old equity partners. Upon the court’s approval of that plan, the partners were in the same position that they would have enjoyed had they exercised an exclusive option under the plan to buy the equity in the reorganized entity, or contracted to purchase it from a seller who had first agreed to deal with no one else. It is quite true that the escrow of the partners’ proposed investment eliminated any formal need to set out an express option or exclusive dealing provision in the plan itself, since the court’s approval that created the opportunity and the partners’ action to. obtain its advantage were simultaneous. But before the Debtor’s plan was accepted no one else could propose an alternative one, and after its acceptance no one else could obtain equity in the reorganized entity. At the moment of the plan’s approval the Debtor’s partners necessarily enjoyed an exclusive opportunity that was in no economic sense distinguishable from the advantage of the exclusively entitled offeror or option holder. This opportunity should, first of all, be treated as an item of property in its own right. Cf. In re Coltex Loop Central Three Partners, L. P., 138 F. 3d, at 43 (exclusive right to purchase post-petition equity is itself property); In re Bryson Properties, XVIII, 961 F. 2d, at 504; Kham & Nate’s Shoes No. 2, Inc. v. First Bank, 908 F. 2d 1351, 1360 (CA7 1990); D. Baird, The Elements of Bankruptcy 261 (rev. ed. 1993) (“The right to get an equity interest for its fair market value is ‘property’ as the word is ordinarily used. Options to acquire an interest in a firm, even at its market value, trade for a positive price”). While it may be argued that the opportunity has no market value, being significant only to old equity holders owing to their potential tax liability, such an argument avails the Debtor nothing, for several reasons. It is to avoid just such arguments that the law is settled that any otherwise cognizable property interest must be treated as sufficiently valuable to be recognized under the Bankruptcy Code. See Ahlers, 485 U. S., at 207-208. Even aside from that rule, the assumption that no one but the Debtor’s partners might pay for such an opportunity would obviously support no inference that it is valueless, let alone that it should not be treated as property. And, finally, the source in the tax law of the opportunity’s value to the partners implies in no way that it lacks value to others. It might, indeed, be valuable to another precisely as a way to keep the Debtor from implementing a plan that would avoid a Chapter 7 liquidation.
Given that the opportunity is property of some value, the question arises why old equity alone should obtain it, not to mention at no cost whatever. The closest thing to an answer favorable to the Debtor is that the old equity partners would be given the opportunity in the expectation that in taking advantage of it they would add the stated purchase price to the estate. See Brief for Respondent 40-41. But this just begs the question why the opportunity should be exclusive to the old equity holders. If the price to be paid for the equity interest is the best obtainable, old equity does not need the protection of exclusiveness (unless to trump an equal offer from someone else); if it is not the best, there is no apparent reason for giving old equity a bargain. There is no reason, that is, unless the very purpose of the whole transaction is, at least in part, to do old equity a favor. And that, of course, is to say that old equity would obtain its opportunity, and the resulting benefit, because of old equity’s prior interest within the meaning of subsection (b)(2)(B)(ii). Hence it is that the exclusiveness of the opportunity, with its protection against the market’s scrutiny of the purchase price by means of competing bids or even competing plan proposals, renders the partners’ right a property interest extended “on account of” the old equity position and therefore subject to an unpaid senior creditor class’s objection.
It is no answer to say tunity should be treated merely as a detail of the broader transaction that would follow its exercise, and that in this wider perspective no favoritism may be inferred, since the old equity partners would pay something, whereas no one else would pay anything. If this argument were to carry the day, of course, old equity could obtain a new property interest for a dime without being seen to receive anything on account of its old position. But even if we assume that old equity’s plan would not be confirmed without satisfying the judge that the purchase price was top dollar, there is a further reason here not to treat property consisting of an exclusive opportunity as subsumed within the total transaction proposed. On the interpretation assumed here, it would, of course, be a fatal flaw if old equity acquired or retained the property interest without paying full value. It would thus be necessary for old equity to demonstrate its payment of top dollar, but this it
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
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sc_caseorigin
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212
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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.
LOUISIANA v. MISSISSIPPI et al.
No. 14,
Original.
Argued November 16, 1965.
Decided April 18, 1966.
John L. Madden and Edward M. Carmouche, Assistant Attorneys General of Louisiana, argued on the exceptions to the Report of the Special Master on behalf of the plaintiff. With them on the briefs were Jack P. F. Gremittion, Attorney General, Carroll Buck, First Assistant Attorney General, and John A. Bivins, Special Counsel to the Attorney General.
Marlin R. McLendon, Assistant Attorney General of Mississippi, and Landman Teller, Special Assistant to the Attorney General, argued on the exceptions to the Report of the Special Master on behalf of the defendants. With them on the briefs were Joe T. Patterson, Attorney General, and George W. Rogers, Jr.
M. M. Roberts, Bernard J. Caillouet and E. L. Brunini filed a brief for Humble Oil & Refining Co. in support of its exceptions to the Report of the Special Master.
Per Curiam
and Decree.
Upon consideration of the Report filed June 7, 1965, by Senior Judge Marvin Jones, Special Master, and the exceptions thereto, it is now adjudged, ordered, and decreed as follows:
(1) All exceptions are overruled and the Report is in all things confirmed.
(2) The true boundary between the States of Louisiana and Mississippi in the area of the Mississippi River known as Deadman’s Bend on the several dates mentioned is determined to be as follows:
At all times the live thalweg has been the true boundary.
On October 3, 1952, the live thalweg was a gradually curving line running southward from the foot of Glass-cock Cutoff, and east of the future location of Louisiana State Well No. 1 by 230 feet, to the end of Deadman’s Bend at range 334.5 AHP. This line is described below by latitude and longitude and is drawn on Special Master Exhibit No. 1.
On April 10, 1964, the live thalweg was a gradually curving line running southward from the foot of Glass-cock Cutoff, and west of Louisiana State Well No. 1 by 850 feet, to the end of Deadman’s Bend at range 334.5 AHP. This line is described below by latitude and longitude and is drawn on Special Master Exhibit No. 1.
At all times between October 3, 1952, and April 10, 1964, the live thalweg has moved at a constant rate. The boundary location for any intervening period at any point in Deadman’s Bend (from the foot of Glasscock Cutoff to range 334.5 AHP) is to be determined mathematically by calculating the constant rate of change for that particular place in Deadman’s Bend, using the 1952 and 1964 thalwegs described heretofore and the appropriate time differentials.
At the latitude of Louisiana State Well No. 1 the location of the boundary was as follows from October 3, 1952, to April 10, 1964:
October 3, 1952 ................ 230 feet east of well
April 27, 1954 .................. 80 feet east of well
February 27, 1955.............. Directly above the well
April 10, 1956.................. 102 feet west of well
April 10, 1957.................. 195 feet west of well
April 10, 1958.................. 289 feet west of well
April 10, 1959.................. 382 feet west of well
April 10, 1960.................. 476 feet west of well
April 10, 1961.................. 569 feet west of well
April 10, 1962 .................. 663 feet west of well
April 10, 1963 .................. 756 feet west of well
April 10, 1964.................. 850 feet west of well
The Louisiana State Well No. 1 became located inside the boundary of Mississippi on February 28, 1955.
The description of the October 3, 1952, live thalweg by geodetic positions (North American Datum) is as follows:
Beginning at the foot of Glasscock Cutoff at a point on range 338.3 AHP, which is Lat. 31°19'07.0"— Long. 91°30'33.5".
Thence running southward through the following points:
Latitude Longitude
91°30'37.0" 31°18'57.5"
91°30'39.0" 31018'47.5"
91°30'40.0" 31°18'37.0"
91°30'39.5" 3V1&'27.W'
91°30'39.0" 31°18'17.0"
91°30'38.0" 31°18'07.0"
91°30'38.0" 31°17'57.5"
91°30'38.0" 31°17/47.0"
91°30'37.0" 31°17/37.0,/
91°30'36.5" 31° 17'27.0"
91°30'36.0" 31°17'17.0"
91°30'35.0" 31°17,07.0"
91°30'33.5" 31016'57.5"
91°30'32.5" 31°16'4:7.0"
91°30'34.0" 31°16'42.5"
91°30'37.0" 31°16'38.0"
91°30'43.0" srie^ob"
91°30'51.0" 31°16,22.5,/
91°31'00.0" 31016'17.0"
9io3i'io.o" 31°16'12.0"
91°31'21.0" 31°16,08.0"
91°31'32.0" 31°16'05.5"
91o31'42.0" 31016'03.5"
The description of the April 10, 1964, live thalweg by geodetic positions (North American Datum) is as follows:
Beginning at the foot of Glasscock Cutoff at a point on range 338.3 AHP, which is Lat. 31°19'07.0"— Long. 91°30'38.5".
Thence running southward through the following points:
Latitude Longitude
91°30'40.5" 31°18'57.5"
91°30'42.5" 3i°i8'48.o"
91°30'44.0" 31°18'38.0"
91°30'46.0" 31°18'28.0"
91°30'47.0" 3i°i8T8.5"
91°30'48.5" 31°18'08.5"
91°30'50.0" 31°17'59.0"
91°30'52.0" 31°17'49.0"
91°30'52.5" 31°17'39.0"
91°30'52.5" 31°17'29.5"
91°30'52.5" 31°17/20.0'/
91°30'52.0" 31°17'10.0"
91°30'52.0" 31°17'00.5"
91°30'52.5" 31°16'51.0"
91°30'53.0" 31°16'41.0"
91°30'55.0" 31°16'36.0"
9i°30'58.0" 31°16'32.0"
91°31'04.5" 31°16'24.0"
91°31'11.5" 31°16'16.0"
91°31'18.5" 3i°i6'09.0"
91°31'28.0" 31°16'03.0"
91°31'38.0" 31°15'59.0"
(3) As it appears that the Special Master has completed his work, he is hereby discharged with the thanks of the Court.
(4) The costs of this suit are to be equally divided between the two States.
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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sc_caseorigin
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087
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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.
CODD, POLICE COMMISSIONER, CITY OF NEW YORK, et al. v. VELGER
No. 75-812.
Argued December 1, 1976
Decided February 22, 1977
W. Bernard Richland argued the cause and filed a brief for petitioners.
Sam Resnicoff argued the cause for respondent. With him on the brief was Edward M. Rappaport.
Per Curiam.
Respondent Velger’s action shifted its focus, in a way not uncommon to lawsuits, from the time of the filing of his complaint in the United States District Court for the Southern District of New York to the decision by the Court of Appeals for the Second Circuit which we review here. His original complaint alleged that he had been wrongly dismissed without a hearing or a statement of reasons from his position as a patrolman with the New York City Police Department, and under 42 U. S. C. § 1983, sought reinstatement and damages for the resulting injury to his reputation and future employment prospects. After proceedings in which Judge Gurfein (then of the District Court) ruled that respondent had held a probationary position and therefore had no hearing right based on a property interest in his job, respondent filed an amended complaint. That complaint alleged more specifically than had the previous one that respondent was entitled to a hearing due to the stigmatizing effect of certain material placed by the City Police Department in his personnel file. He alleged that the derogatory material had brought about his subsequent .dismissal from a position with the Penn-Central Railroad Police Department, and that it had also prevented him from finding other employment of a similar nature for which his scores on numerous examinations otherwise qualified him.
The case came on for a bench trial before Judge Werker, who, in the words of his opinion on the merits, found “against plaintiff on all issues.” He determined that the only issue which survived Judge Gurfein’s ruling on the earlier motions was whether petitioners, in discharging respondent had “imposed a stigma on Mr. Yelger that foreclosed his freedom to take advantage of other employment opportunities.” After discussing the evidence bearing upon this issue, Judge Werker concluded that “[i]t is clear from the foregoing facts that plaintiff has not proved that he has been stigmatized by defendants.”
Among the specific findings of fact made by the District Court was that an officer of the Penn-Central Railroad Police Department was shown the City Police Department file relating to respondent’s employment, upon presentation of a form signed by respondent authorizing the release of personnel information. From an examination of the file, this officer “gleaned that plaintiff had been dismissed because while still a trainee he had put a revolver to his head in an apparent suicide attempt.” The Penn-Central officer tried to verify this story, but the Police Department refused to cooperate with him, advising him to proceed by letter. In rendering judgment against the respondent, the court also found that he had failed to establish “that information about his Police Department service was publicized or circulated by defendants in any way that might reach his prospective employers.”
Respondent successfully appealed this decision to the Court of Appeals for the Second Circuit. That court held that the finding of no stigma was clearly erroneous. It reasoned that the information about the apparent suicide attempt was of a kind which would necessarily impair employment prospects for one seeking work as a police officer. It also decided that the mere act of making available personnel files with the employee’s consent was enough to place responsibility for the stigma on the employer, since former employees had no practical alternative but to consent to the release of such information if they wished to be seriously considered for other employment. Velger v. Cawley, 525 F. 2d 334 (1975).
We granted certiorari, sub nom. Cawley v. Velger, 427 U. S. 904 (1976), and the parties have urged us to consider whether the report in question was of a stigmatizing nature, and whether the circumstances of its apparent dissemination were such as to fall within the language of Board of Regents v. Roth, 408 U. S. 564, 573 (1972) and Bishop v. Wood, 426 U. S. 341 (1976). We find it unnecessary to reach these issues, however, because of respondent’s failure to allege or prove one essential element of his case.
Assuming all of the other elements necessary to make out a claim of stigmatization under Roth and Bishop, the remedy mandated by the Due Process Clause of the Fourteenth Amendment is “an opportunity to refute the charge.” 408 U. S., at 573. “The purpose of such notice and hearing is to provide the person an opportunity to clear his name,” id., at 573 n. 12. But if the hearing mandated by the Due Process Clause is to serve any useful purpose, there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee’s reputation. Nowhere in his pleadings or elsewhere has respondent affirmatively asserted that the report of the apparent suicide attempt was substantially false. Neither' the District Court nor the Court of Appeals made any such finding. When we consider the nature of the interest sought to be protected, we believe the absence of any such allegation or finding is fatal to respondent’s claim under the Due Process Clause that he should have been given a hearing.
Where the liberty interest involved is that of conditional freedom following parole, we have said that the hearing required by the Due Process Clause in order to revoke parole must address two separate considerations. The first is whether the parolee in fact committed the violation with which he is charged, and the second is whether if he did commit the act his parole should, under all the circumstances, therefore be revoked. Morrissey v. Brewer, 408 U. S. 471, 479-480 (1972); Gagnon v. Scarpelli, 411 U. S. 778, 784 (1973). The fact that there was no dispute with respect to the commission of the act would not necessarily obviate the need for a hearing on the issue of whether the commission of the act warranted the revocation of parole.
But the hearing required where a nontenured employee has been stigmatized in the course of a decision to terminate his employment is solely “to provide the person an opportunity to clear his name.” If he does not challenge the substantial truth of the material in question, ho hearing would afford a promise of achieving that result for him. For the contemplated hearing does not embrace any determination analogous to the “second step” of the parole revocation proceeding, which would in effect be a determination of whether or not, conceding that the report were true, the employee was properly refused re-employment. Since the District Court found that respondent had no Fourteenth Amendment property interest in continued employment, the adequacy or even the existence of reasons for failing to rehire him presents no federal constitutional question. Only if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination is such a hearing required. Both, supra; Bishop, supra.
Our decision here rests upon no overly technical application of the rules of pleading. Even conceding that the respondent’s termination occurred solely because of the report of an apparent suicide attempt, a proposition which is certainly not crystal clear on this record, respondent has at no stage of this litigation affirmatively stated that the “attempt” did not take place as reported. The furthest he has gone is a suggestion by his counsel that “[i]t might have been all a mistake, [i]t could also have been a little horseplay.” This is not enough to raise an issue about the substantial accuracy of the report. Respondent has therefore made out no claim under the Fourteenth Amendment that he was harmed by the denial of a hearing, even were we to accept in its entirety the determination by the Court of Appeals that the creation and disclosure of the file report otherwise amounted to stigmatization within the meaning of Board of Regents v. Roth, supra.
The judgment of the Court of Appeals is reversed with instructions to reinstate the judgment of the District Court.
So ordered.
Respondent’s amended complaint did not seek a delayed Both hearing to be conducted by his former employer at which he would have the opportunity to refute the charge in question. Board of Regents v. Roth, 408 U. S. 564, 573 (1972). The relief he sought was premised on the assumption that the failure to accord such a hearing when it should have been accorded entitled him to obtain reinstatement and damages resulting from the denial of such hearing. We therefore have no occasion to consider the allocation of the burden of pleading and proof of the necessary issues as between the federal forum and the administrative hearing where such relief is sought.
The Court of Appeals did not pass on this "property interest” question. Respondent has not urged it as an alternative basis for affirming the judgment of that court, and indeed has all but conceded in his brief that the District Court’s interpretation of the relevant New York cases is correct in this respect. Brief for Respondent 14. The opinion of the District Court on this point reflects a proper understanding of Roth, supra, and of Perry v. Sindermann, 408 U. S. 598 (1972), and we see no reason to disturb its application of those cases to particular facets of the New York law of entitlement to public job tenure. Id., at 602 n. 7.
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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sc_caseorigin
|
114
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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.
PEARSON et al. v. CALLAHAN
No. 07-751.
Argued October 14, 2008
Decided January 21, 2009
Alxto, J., delivered the opinion for a unanimous Court.
Peter Stirba argued the cause for petitioners. With him on the briefs were Meb W. Anderson and Orín S. Kerr.
Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were former Solicitor General Garre, Acting Assistant Attorneys General Friedrich' and Katsas, Deputy Solicitor General Dreeben, Ann Wallace, Barbara L. Herwig, and Edward Himmelfarb.
Theodore P. Metzler, Jr., argued the cause for respondent. With him on the brief were Robert A. Long, Jr., and James K. Slavens.
Briefs of amici curiae urging reversal were filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Michael A Scodro, Solicitor General, and Jane Elinor Notz, Deputy Solicitor General, by Roberto J. Sdnchez-Ramos, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Talis J. Colberg of Alaska, Dustin McDaniel of Arkansas, Edmund G. Brown, Jr., of California, John W Suthers of Colorado, Bill Mc-Collum of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Martha Coakley of Massachusetts, Michael A. Cox of Michigan, Jim Hood of Mississippi, Mike McGrath of Montana, Catherine Cortez Masto of Nevada, Kelly A Ayotte of New Hampshire, Anne Milgram of New Jersey, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, Patrick C. Lynch of Rhode Island, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Bruce A Salzburg of Wyoming; and for the National Association of Counties et al. by Richard Ruda and Lawrence Rosenthal.
Briefs of amici curiae urging affirmance were filed for the ACLU by Steven R. Shapiro and Adam B. Wolf; for the National Association of Criminal Defense Lawyers by Jeffrey A Lamken and Barbara Bergman; for the National Campaign to Restore Civil Rights by Beth S. Brinkmann, Seth M. Galanter, and Michael Gerard; and for the National Police Accountability Project et al. by Michael Avery, John Burton, Stephen M. Latimer, David Rudovsky, and Jeffrey L. Needle.
Briefs of amici curiae were filed for the Liberty Legal Institute by Kelly J. Shackelford; and for the Texas Association of School Boards by Ramón G. Viada III.
Justice Alito
delivered the opinion of the Court.
This is an action brought by respondent under Rev. Stat. § 1979, 42 U. S. C. § 1983, against state law enforcement officers who conducted a warrantless search of his house incident to his arrest for the sale of methamphetamine to an undercover informant whom he had voluntarily admitted to the premises. The Court of Appeals held that petitioners were not entitled to summary judgment on qualified immunity grounds. Following the procedure we mandated in Saucier v. Katz, 533 U. S. 194 (2001), the Court of Appeals held, first, that respondent adduced facts sufficient to make out a violation of the Fourth Amendment and, second, that the unconstitutionality of the officers’ conduct was clearly established. In granting review, we required the parties to address the additional question whether the mandatory procedure set out in Saucier should be retained.
We now hold that the Saucier procedure should not be regarded as an inflexible requirement and that petitioners are entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional. We therefore reverse.
I
A
The Central Utah Narcotics Task Force is charged with investigating illegal drug use and sales. In 2002, Brian Bartholomew, who became an informant for the task force after having been charged with the unlawful possession of methamphetamine, informed Officer Jeffrey Whatcott that respondent Afton Callahan had arranged to sell Bartholomew methamphetamine later that day.
That evening, Bartholomew arrived at respondent’s residence at about 8 p.m. Once there, Bartholomew went inside and confirmed that respondent had methamphetamine available for sale. Bartholomew then told respondent that he needed to obtain money to make his purchase and left.
Bartholomew met with members of the task force at about 9 p.m. and told them that he would be able to buy a gram of methamphetamine for $100. After concluding that Bartholomew was capable of completing the planned purchase, the officers searched him, determined that he had no controlled substances on his person, gave him a marked $100 bill and a concealed electronic transmitter to monitor his conversations, and agreed on a signal that he would give after completing the purchase.
The officers drove Bartholomew to respondent’s trailer home, and respondent’s daughter let him inside. Respondent then retrieved a large bag containing methamphetamine from his freezer and sold Bartholomew a gram of methamphetamine, which he put into a small plastic bag. Bartholomew gave the arrest signal to the officers who were monitoring the conversation, and they entered the trailer through a porch door. In the enclosed porch, the officers encountered Bartholomew, respondent, and two other persons, and they saw respondent drop a plastic bag, which they later determined contained methamphetamine. The officers then conducted a protective sweep of the premises. In addition to the large bag of methamphetamine, the officers recovered the marked bill from respondent and a small bag containing methamphetamine from Bartholomew, and they found drug syringes in the residence. As a result, respondent was charged with the unlawful possession and distribution of methamphetamine.
B
The trial court held that the warrantless arrest and search were supported by exigent circumstances. On respondent’s appeal from his conviction, the Utah attorney general conceded the absence of exigent circumstances, but urged that the inevitable discovery doctrine justified introduction of the fruits of the warrantless search. The Utah Court of Appeals disagreed and vacated respondent’s conviction. See State v. Callahan, 2004 UT App. 164, 93 P. 3d 103. Respondent then brought this damages action under 42 U. S. C. § 1983 in the United States District Court for the District of Utah, alleging that the officers had violated the Fourth'Amendment by entering his home without a warrant. See Callahan v. Millard Cty., No. 2:04-CV-00952, 2006 WL 1409130 (2006).
In granting the officers’ motion for summary judgment, the District Court noted that other courts had adopted the “consent-once-removed” doctrine, which permits a warrant-less entry by police officers into a home when consent to enter has already been granted to an undercover officer or informant who has observed contraband in plain view. Believing that this doctrine was in tension with our intervening decision in Georgia v. Randolph, 547 U. S. 103 (2006), the District Court concluded that “the simplest approach is to assume that the Supreme Court will ultimately reject the [consent-once-removed] doctrine and find that searches such as the one in this case are not reasonable under the Fourth Amendment.” 2006 WL 1409130, *8. The court then held that the officers were entitled to qualified immunity because they could reasonably have believed that the consent-once-removed doctrine authorized their conduct.
On appeal, a divided panel of the Tenth Circuit held that petitioners’ conduct violated respondent’s Fourth Amendment rights. Callahan v. Millard Cty., 494 F. 3d 891, 895-899 (2007). The panel majority stated that “[t]he ‘consent-once-removed’ doctrine applies when an undercover officer enters a house at the express invitation of someone with authority to consent, establishes probable cause to arrest or search, and then immediately summons other officers for assistance.” Id., at 896. The majority took no issue with application of the doctrine when the initial consent was granted to an undercover law enforcement officer, but the majority disagreed with decisions that “broade[n] this doctrine to grant informants the same capabilities as undercover officers.” Ibid.
The Tenth Circuit panel further held that the Fourth Amendment right that it recognized was clearly established at the time of respondent’s arrest. Id., at 898-899. “In this case,” the majority stated, “the relevant right is the right to be free in one’s home from unreasonable searches and arrests.” Id., at 898. The Court determined that, under the clearly established precedents of this Court and the Tenth Circuit, “warrantless entries into a home are per se unreasonable unless they satisfy the established exceptions.” Id., at 898-899. In the panel’s words, “the Supreme Court and the Tenth Circuit have clearly established that to allow police entry into a home, the only two exceptions to the warrant requirement are consent and exigent circumstances.” Id., at 899. Against that backdrop, the panel concluded, petitioners could not reasonably have believed that their conduct was lawful because petitioners “knew (1) they had no warrant; (2) [respondent] had not consented to their entry; and (3) [respondent’s] consent to the entry of an informant could not reasonably be interpreted to extend to them.” Ibid.
In dissent, Judge Kelly argued that “no constitutional violation occurred in this case” because, by inviting Bartholomew into his house and participating in a narcotics transaction there, respondent had compromised the privacy of the residence and had assumed the risk that Bartholomew would reveal their dealings to the police. Id., at 903. Judge Kelly further concluded that, even if petitioners’ conduct had been unlawful, they were nevertheless entitled to qualified immunity because the constitutional right at issue — “the right to be free from the warrantless entry of police officers into one’s home to effectuate an arrest after one has granted voluntary, consensual entry to a confidential informant and undertaken criminal activity giving rise to probable cause” — was not “clearly established” at the time of the events in question. Id., at 903-904.
As noted, the Court of Appeals followed the Saucier procedure. The Saucier procedure has been criticized by Members of this Court and by lower court judges, who have been required to apply the procedure in a great variety of cases and thus have much firsthand experience bearing on its advantages and disadvantages. Accordingly, in granting certiorari, we directed the parties to address the question whether Saucier should be overruled. 552 U. S. 1279 (2008).
II
A
The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official’s error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Groh v. Ramirez, 540 U. S. 551, 567 (2004) (Kennedy, J., dissenting) (quoting Butz v. Economou, 438 U. S. 478, 507 (1978), for the proposition that qualified immunity covers “mere mistakes in judgment, whether the mistake is one of fact or one of law”).
Because qualified immunity is “an immunity from suit rather than a mere defense to liability... it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U. S. 511, 526 (1985) (emphasis deleted). Indeed, we have made clear that the “driving force” behind creation of the qualified immunity doctrine was a desire to ensure that “ ‘insubstantial claims’ against government officials [will] be resolved prior to discovery.” Anderson v. Creighton, 483 U. S. 635, 640, n. 2 (1987). Accordingly, “we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U. S. 224, 227 (1991) (per curiam).
In Saucier, 533 U. S. 194, this Court mandated a two-step sequence for resolving government officials’ qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right. 533 U. S., at 201. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was “clearly established” at the time of defendant’s alleged misconduct. Ibid. Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right. Anderson, supra, at 640.
Our decisions prior to Saucier had held that “the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all.” County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998). Saucier made that suggestion a mandate. For the first time, we held that whether “the facts alleged show the officer’s conduct violated a constitutional right... must be the initial inquiry” in every qualified immunity case. 533 U. S., at 201 (emphasis added). Only after completing this first step, we said, may a court turn to “the next, sequential step,” namely, “whether the right was clearly established.” Ibid.
This two-step procedure, the Saucier Court reasoned, is necessary to support the Constitution’s “elaboration from case to case” and to prevent constitutional stagnation. Ibid. “The law might be deprived of this explanation were a court simply to skip ahead'to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.” Ibid.
B
In considering whether the Saucier procedure should be modified or abandoned, we must begin with the doctrine of stare decisis. Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 (1991). Although “[w]e approach the reconsideration of [our] decisions... with the utmost caution,” “[s]tare decisis is not an inexorable command.” State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) (internal quotation marks omitted). Revisiting precedent is particularly appropriate where, as here, a departure would not upset expectations, the precedent consists of a judge-made rule that was recently adopted to improve the operation of the courts, and experience has pointed up the precedent’s shortcomings.
“Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases... involving procedural and evidentiary rules” that do not produce such reliance. Payne, supra, at 828 (citations omitted). Like rules governing procedures and the admission of evidence in the trial courts, Saucier’s two-step protocol does not affect the way in which parties order their affairs. Withdrawing from Saucier’s categorical rule would not upset settled expectations on anyone’s part. See United States v. Gaudin, 515 U. S. 506, 521 (1995).
Nor does this matter implicate “the general presumption that legislative changes should be left to Congress.” Khan, supra, at 20. We recognize that “considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court’s interpretation of its legislation.” Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977). But the Saucier rule is judge made and implicates an important matter involving internal Judicial Branch operations. Any change should come from this Court, not Congress.
Respondent argues that the.Saucier procedure should not be reconsidered unless we conclude that its justification was “badly reasoned” or that the rule has proved to be “unworkable,” see Payne, supra, at 827, but those standards, which are appropriate when a constitutional or statutory precedent is challenged, are out of place in the present context. Because of the basis and the nature of the Saucier two-step protocol, it is sufficient that we now have a considerable body of new experience to consider regarding the consequences of requiring adherence to this inflexible procedure. This experience supports our present determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained.
Lower court judges, who have had the task of applying the Saucier rule on a regular basis for the past eight years, have not been reticent in their criticism of Saucier’s “rigid order of battle.” See, e. g., Purtell v. Mason, 527 F. 3d 615, 622 (CA7 2008) (“This ‘rigid order of battle’ has been criticized on practical, procedural, and substantive grounds”); Leval, Judging Under the Constitution: Dicta About Dicta, 81 N. Y. U. L. Rev. 1249,1275,1277 (2006) (hereinafter Leval) (referring to Saucier’s mandatory two-step framework as “a new and mischievous rule” that amounts to “a puzzling misadventure in constitutional dictum”). And application of the rule has not always been enthusiastic. See Higazy v. Templeton, 505 F. 3d 161, 179, n. 19 (CA2 2007) (“We do not reach the issue of whether [plaintiff’s] Sixth Amendment rights were violated, because principles of judicial restraint caution us to avoid reaching constitutional questions when they are unnecessary to the disposition of a case”); Cherrington v. Skeeter, 344 F. 3d 631, 640 (CA6 2003) (“[I]t ultimately is unnecessary for us to decide whether the individual Defendants did or did not heed the Fourth Amendment command... because they are entitled to qualified immunity in any event”); Pearson v. Ramos, 237 F. 3d 881, 884 (CA7 2001) (“Whether [the Saucier] rule is absolute may be doubted”).
Members of this Court have also voiced criticism of the Saucier rule. See Morse v. Frederick, 551 U. S. 393, 432 (2007) (Breyer, J., concurring in judgment in part and dissenting in part) (“I would end the failed Saucier experiment now”); Bunting v. Mellen, 541 U. S. 1019 (2004) (Stevens, J., joined by Ginsburg and Breyer, JJ., respecting denial of certiorari) (criticizing the “unwise judge-made rule under which courts must decide whether the plaintiff has alleged a constitutional violation before addressing the question whether the defendant state actor is entitled to qualified immunity”); id., at 1025 (Scalia, J., joined by Rehnquist, C. J., dissenting from denial of certiorari) (“We should either make clear that constitutional determinations are not insulated from our review... or else drop any pretense at requiring the ordering in every case” (emphasis in original)); Brosseau v. Haugen, 543 U. S. 194, 201-202 (2004) (Breyer, J., joined by Scalia and Ginsburg, JJ., concurring) (urging Court to reconsider Saucier’s “rigid ‘order of battle,’” which “requires courts unnecessarily to decide difficult constitutional questions when there is available an easier basis for the decision (e. g., qualified immunity) that will satisfactorily resolve the case before the court”); Saucier, 533 U. S., at 210 (Ginsburg, J., concurring in judgment) (“The two-part test today’s decision imposes holds large potential to confuse”).
Where a decision has “been questioned by Members of the Court in later decisions and [has] defied consistent application by the lower courts,” these factors weigh in favor of reconsideration. Payne, 501 U. S., at 829-830; see also Crawford v. Washington, 541 U. S. 36, 60 (2004). Collectively, the factors we have noted make our present reevaluation of the Saucier two-step protocol appropriate.
III
On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.
A
Although we now hold that the Saucier protocol should not be regarded as mandatory in all cases, we continue to recognize that it is often beneficial. For one thing, there aré cases in which there would be little if any conservation of judicial resources to be had by beginning and ending with a discussion of the “clearly established” prong. “[I]t often may be difficult to decide whether a right is clearly established without deciding precisely what the existing constitutional right happens to be.” Lyons v. Xenia, 417 F. 3d 565, 581 (CA6 2005) (Sutton, J., concurring). In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. In addition, the Saucier Court was certainly correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.
B
At the same time, however, the rigid Saucier procedure comes with a price. The procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case. There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right. District courts and courts of appeals with heavy caseloads are often understandably unenthusiastic about what may seem to be an essentially academic exercise.
Unnecessary litigation of constitutional issues also wastes the parties’ resources. Qualified immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell, 472 U. S., at 526 (emphasis deleted). Saucier’s two-step protocol “disserve[s] the purpose of qualified immunity” when it “forces the parties to endure additional burdens of suit— such as the costs of litigating constitutional questions and delays attributable to resolving them — when the suit otherwise could be disposed of more readily.” Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 30.
Although the first prong of the Saucier procedure is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development. For one thing, there are cases in which the constitutional question is so factbound that the decision provides little guidance for future cases. See Scott v. Harris, 550 U. S. 372, 388 (2007) (Breyer, J., concurring) (counseling against the Saucier two-step protocol where the question is “so fact dependent that the result will be confusion rather than clarity”); Buchanan v. Maine, 469 F. 3d 158, 168 (CA1 2006) (“We do not think the law elaboration purpose will be well served here, where the Fourth Amendment inquiry involves a reasonableness question which is highly idiosyncratic and heavily dependent on the facts”).
A decision on the underlying constitutional question in a § 1983 damages action or a Bivens v. Six Unknown Fed. Nar cotics Agents, 403 U. S. 388 (1971), action may have scant value when it appears that the question will soon be decided by a higher court. When presented with a constitutional question on which this Court had just granted certiorari, the Ninth Circuit elected to “bypass Saucier’s first step and decide only whether [the alleged right] was clearly established.” Motley v. Parks, 432 F. 3d 107
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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_genapel1
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
BRITE et al. v. W. J. HOWEY CO. et al.
No. 7893.
Circuit Court of Appeals, Fifth Circuit.
Feb. 19, 1936.
C. D. Rinehart, of Jacksonville, Fla., and H. C. Collins, of Leesburg, Fla., for appellants.
George C. Bedell, of Jacksonville, Fla., and C. E. Duncan and John S. Lavin, both of Tavares, Fla., for appellees.
Before SIBLEY, HUTCHESON, and WALKER, Circuit Judges.
SIBLEY, Circuit Judge.
The amended bill of appellants against appellees to rescind for fraud a sale of land and to recover the purchase price and other outlays was dismissed on a motion which contended, among other things, that information concerning the facts as to which deceit was claimed -was at all times available to appellants, and that, after actual knowledge, there was not prompt disaffirmance, but a delay sufficient to defeat rescission. Other grounds are disregarded on this appeal.
The sale occurred February 24, 1928. As a part of it, there were contracts whereby the land purchased would be planted in citrus fruit trees by an agency of the seller and cultivated for the purchasers until eight crops were raised, and whereby eleven crops of the fruit would be taken at a fixed price which was above the usual market. The deceit claimed is that it was represented “that the grapefruit grown upon said land would cure diabetes and possess other medicinal qualities and properties not common to grapefruit grown upon other lands in Florida; that the lands capable of producing such grapefruit were very limited in extent, being in fact confined to a small area near the town of Howey-in-the-Hills; that the land located in said area had a peculiar subsoil which would produce grapefruit having medicinal qualities, among said qualities being the ability to cure diabetes not contained in grapefruit produced on other lands located outside said area though nearby.” These representations, it is alleged, “were false and were known or should have been known to the said defendants, their officers and agents, to be false.” This is a doubtful allegation of willful fraud, but we assume it to mean that the representations, if not known to be false, were recklessly made. Appellants, being ignorant about grapefruit and soils, did not suspect the fraud until, on December 30, 1931, a false claim was made that they had broken their contract touching the cultivation of the lands and a notice was given that the fruit would not be taken and paid for as agreed. Thereupon appellants made investigation as to the medicinal qualities of the grapefruit, and an officer of the selling corporation admitted that a chemist had advised that there were no medicinal properties, and others advised appellants to the same effect and that the prices paid for the land and for its cultivation were excessive. It is alleged that in October, 1932, through an attorney at law, appellants “offered to the said defendants to reconvey the said land by a good and sufficient deed * * * if the defendants would return the sum of $11,000 paid as the purchase price of said land, but the said defendants refused to accept the said offer and said they would not repurchase the grove at any price.” There is no allegation of a notice oí a rescission for fraud or of any other communication except as above quoted. The bill was filed April 13, 1933, and prays for a decree of rescission and a recovery of everything paid for the land and for its cultivation.
Irrespective of any question of an earlier failure in diligence, the bill confesses that suspicion of the fraud was aroused in December, 1931, and knowledge of the truth reached soon afterwards. The exact date of full knowledge is not alleged, but, when ground for suspicion exists, neglect to learn what might be known is counted as knowledge. Foster v. Mansfield, C. & L. M. R. Co., 146 U.S. 88, 99, 13 S.Ct. 28, 36 L.Ed. 899; Johnston v. Standard Mining Co., 148 U.S. 360, 13 S.Ct. 585, 37 L.Ed. 480; Broderick’s Will, 21 Wall. 503, 504, 22 L.Ed. 599; Felix v. Patrick, 145 U.S. 317, 12 S.Ct. 862, 36 L.Ed. 719. When fraud in the making of a contract is discovered, the party defrauded has an election to rescind the contract or to stand upon it and sue for the damages caused by the deceit. He must, in order to rescind, promptly so elect and notify the opposite party and adhere to the position taken. Grymes v. Sanders, 93 U.S. 55, 23 L.Ed. 798; McLean v. Clapp, 141 U.S. 429, 12 S.Ct. 29, 35 L.Ed. 804; Hoyt v. Latham, 143 U.S. 553, 12 S.Ct. 568, 36 L.Ed. 259; Shappirio v. Goldberg, 192 U.S. 232, 24 S. Ct. 259, 48 L.Ed. 419; 6 R.C.L. “Contracts,” ;§§ 315, 317; Holmes v. Cummings (C.C.A.) 71 F.(2d) 364. If there be failure promptly to rescind, the contract stands affirmed, and only the remedy of damages remains. What action is prompt depends on circumstances. Less time can be taken to consider the rescission of a sale when market values ' are changing. The defrauded party cannot wait to see how the values will work out. In this case we judicially know that, due to the country-wide depression in progress in 1931 and 1932, land values were falling rapidly. Appellants should not have delayed ,to. decide whether they would keep the land or not. From December, 1931, to :October, 1932, was too long to wait. We doubt whether what was done at the latter date amounts to a notice of rescission. There was no mention of fraud or claim of right in it. It is described as an offer to resell, which was declined; and an offer to sell is an assertion of ownership. The bill which first unequivocally demanded a rescission was not filed until another six months had passed. It is not a question of laches, but of election. We think the right of rescission was lost, and only a possible remedy by damages at law is left.
Without prejudice to any remedy at law, the judgment 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:
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songer_respond2_3_2
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
REGULAR COMMON CARRIER CONFERENCE, et al., Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Burlington Northern, Inc., et al., Transportation Lawyers Association, Intervenors. (Two Cases) INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS of AMERICA, et al., Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Burlington Northern, Inc., et al., Transportation Lawyers Association, Intervenors.
Nos. 85-1601, 86-1222 and 86-1435.
United States Court of Appeals, District of Columbia Circuit.
Argued March 27, 1987.
Decided June 23, 1987.
Laura Layman and Kevin M. Williams, Washington, D.C., with whom Robert J. Higgins and Joan M. Darby were on the brief, for petitioners.
Timm L. Abendroth, Attorney, I.C.C., Washington, D.C., with whom Robert S. Burk, General Counsel, John J. McCarthy, Jr., Deputy Associate General Counsel, I.C.C., John J. Powers, III and John P. Fonte, Attorneys, Dept, of Justice were on the brief, for respondents, I.C.C. and U.S.
Herbert J. Martin, Washington, D.C., for intervenor, Burlington Northern, Inc., et al.
James F. Flint and Robert Walker, Washington, D.C., entered appearances for intervenor, Transportation Lawyers Ass’n.
Before EDWARDS and STARR, Circuit Judges, and SWYGERT, Senior Circuit Judge of the United States Court of Appeals for the Seventh Circuit.
Sitting by designation pursuant to 28 U.S.C. § 294(d) (1982).
Opinion for the Court filed by Circuit Judge EDWARDS.
HARRY T. EDWARDS, Circuit Judge:
We are asked to review three decisions of the Interstate Commerce Commission (“ICC” or the “Commission”) exempting from statutory prior approval requirements a series of intermodal acquisitions involving rail and motor carriers. Because we conclude that the Commission applied the wrong statutory criteria in granting the exemption requests, we reverse and remand the Commission’s decisions.
I. Background
These consolidated cases involve the acquisition of several trucking companies by Burlington Northern, Inc., a holding company that owns the Burlington Northern Railroad Company, a Class I railroad. In four separate petitions filed with the ICC during 1985 and 1986, both Burlington Northern, Inc. and its wholly-owned subsidiary Burlington Northern Motor Carriers. Inc. (hereinafter referred to collectively as “Burlington Northern”) sought statutory exemptions in connection with their proposed acquisitions of six trucking companies. Absent exemptions, the acquisitions would have required prior ICC approval under 49 U.S.C. § 11343 et seq. (1982 & Supp. III 1985). In seeking to avoid the requirement of prior approval from the ICC, Burlington Northern petitioned for exemptions under 49 U.S.C. § 11343(e) (1982), which provides in relevant part:
(e)(1) Notwithstanding any provisions of this title, the Interstate Commerce Commission, in a matter related to a motor carrier of property providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title, may exempt a person, class of persons, transaction, or class of transactions from the merger, consolidation, and acquisition of control provisions of this subchapter if the Commission finds that—
(A) the application of such provisions is not necessary to carry out the transportation policy of section 10101 of this title; and
(B) either (i) the transaction is of limited scope, or (ii) the application of such provisions is not needed to protect shippers from the abuse of market power.
Id. § 11343(e)(1). Section 10101, referenced in section 11343(e)(1), lists the overall goals of ICC transportation policy. Id. § 10101.
Burlington Northern’s petitions for section 11343(e) exemptions were opposed by the Regular Common Carrier Conference (“RCCC”), the Transportation Lawyers Association (“TLA”), the International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America (“IBT”) and the American Trucking Association, Inc. Among their objections, the opposing parties claimed that the ICC may not act under section 11343(e) to exempt rail-motor acquisitions of the sort proposed by Burlington Northern, but must instead evaluate such acquisitions according to the requirements set forth in 49 U.S.C. § 10505 (1982):
(a) In a matter related to a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under this subchapter, the Commission shall exempt a person, class of persons, or a transaction or service when the Commission finds that the application of a provision of this subtitle—
(1) is not necessary to carry out the transportation policy of section 10101a of this title; and
(2) either (A) the transaction or service is of limited scope, or (B) the application of a provision of this subtitle is not needed to protect shippers from the abuse of market power.
(g) The Commission may not exercise its authority under this section (1) to authorize intermodal ownership that is otherwise prohibited by this title, or (2) to relieve a carrier of its obligation to protect the interests of employees as required by this subtitle.
Id. § 10505(a), (g). Section 10101a, referenced in section 10505(a)(1), lists the specific goals of ICC rail transportation policy. Id. § 10101a.
In proceedings before the Commission, the opposing parties contended that the reference to “intermodal ownership” in section 10505(g)(1) included ownership of motor carriers by railroads, and thus included Burlington Northern’s proposed acquisitions. Such ownership, they argued, is “otherwise prohibited” within the meaning of section 10505(g)(1) unless it satisfies the specific requirements of 49 U.S.C. § 11344(c) (1982), which states in relevant part:
When a rail carrier, or a person controlled by or affiliated with a rail carrier, is an applicant and the transaction involves a motor carrier, the Commission may approve and authorize the transaction only if it finds that the transaction is consistent with the public interest, will enable the rail carrier to use motor carrier transportation to public advantage in its operations, and will not unreasonably restrain competition.
In other words, the opposing parties argued that, because section 10505(g)(1) prohibits the ICC from exempting a rail-motor acquisition that does not satisfy the requirements of section 11344(c), the ICC was statutorily obligated to apply the standards of section 11344(c) (and not the less stringent standards of section 11343(e)) in considering Burlington Northern’s petitions.
In a series of three decisions, the ICC purported to invoke the provisions of section 11343(e) and granted all four of Burlington Northern’s exemption petitions. In so doing, the ICC rejected the opposing parties’ arguments regarding the overriding applicability of section 11344(c). See Burlington Northern, Inc. — Control Exemption — Victory Freightway Sys., ICC Docket No. MC-F-16248 (decided July 11, 1985; served July 26, 1985) (“July 1985 Decision”), reprinted in Joint Record Appendix (“J.R.A.”) 1; Burlington Northern, Inc. — Control Exemption — Victory Freightway Sys., ICC Docket No. MC-F-16248, Burlington Northern, Inc. — Control Exemption — Monkem Co., ICC Docket No. MC-F-16372, and Burlington Northern, Inc. — Control Excemption— Monroe Trucking, ICC Docket No. MC-F-16452 (decided Jan. 29, 1986; served Feb. 13, 1986) (“January 1986 Decision”), reprinted in J.R.A. 9; Burlington Northern, Inc. and Burlington Northern Motor Carriers, Inc. — Control Exemption— Stoops Express, Inc., Wingate Trucking Co., and Taylor-Maid Transp., ICC Docket No. MC-F-17030 (decided July 18, 1986; served July 28, 1986) (“July 1986 Decision”), reprinted in J.R.A. 22.
In the July 1985 Decision, the ICC rejected by a 4-3 vote the argument that the “intermodal ownership” limitation of section 10505(g)(1) compelled the Commission to apply section 11344(c) to the transactions at issue. The majority added that even if section 10505(g)(1) — and thus section 11344(c) — were applicable, Burlington Northern’s proposed acquisition would satisfy the requirements of section 11344(c). However, the majority offered only a cursory explanation of the basis for this alternative holding. July 1985 Decision at 5, reprinted in J.R.A. 5.
In the January 1986 Decision, a bare majority of the Commission again rejected the statutory construction offered by the parties opposing Burlington Northern’s petition, declaring that “[t]he factors enumerated in section 11344(c) are subsumed within the broader competitive analysis we conduct in rail-motor acquisitions” under section 11343(e). January 1986 Decision at 7-8, reprinted in J.R.A. 15-16. In addition, however, the majority very briefly considered each of the section 11344(c) factors and concluded that they were satisfied. Id. at 10-11, reprinted in J.R.A. 18-19.
In the July 1986 Decision, the same majority approved Burlington Northern’s remaining petitions, adhering to its previous position on the applicability of section 11343(e). This time, however, the majority retreated from the position it had taken in January of 1986 — that the factors enumerated in section 11344(c) were “subsumed” within the criteria of section 11343(e). Instead, the majority stated: “[W]e no longer believe the criteria under that section [11344(c) ] are relevant in evaluating whether transactions such as those involved here meet the exemption criteria under section 11343(e).” July 1986 Decision at 5 n. 3, reprinted in J.R.A. 26 (emphasis in original). The majority concluded that because “the primary impact of the proposed rail-motor transaction can be expected to be on the motor carrier industry rather than on the rail industry,” the Commission should apply section 11343(e) rather than section 10505. Id. at 5, reprinted in J.R.A. 26.
Besides making it unnecessary for the ICC to address the specific criteria of section 11344(c), the granting of Burlington Northern’s exemption requests under section 11343(e) had two additional consequences. First, it indisputably conferred on the transactions immunity from antitrust laws. 49 U.S.C. § 11341(a) (1982). Second, it left to the ICC’s discretion the decision whether to impose labor protective conditions on any of the parties to the transaction. Id. § 11343(e)(4). In contrast, in acquisitions to which sections 10505(g)(1) and 11344(c) apply, labor protection for rail employees is mandatory, id. §§ 10505(g)(2), 11347 (1982 & Supp. Ill 1985), and the ICC has taken the position that antitrust immunity is unavailable. January 1986 Decision at 6, reprinted in J.R.A. 14. Because of these different substantive consequences, the ICC’s alternative holdings in the July 1985 and January 1986 decisions, although arguably predicated on section 11344(c) findings, did not transform the section 11343(e) exemptions into the equivalent of section 10505 exemptions.
II. Analysis
Two of the groups that opposed Burlington Northern’s petitions below — the RCCC and the IBT (joined by the TLA as an intervening petitioner) — have petitioned this court to review each of the ICC’s decisions, contending that the Commission has no authority to exempt rail-motor acquisitions under section 11343(e). The ICC and the carriers intervening on its behalf contend that the ICC may exempt a rail carrier’s acquisition of a trucking company under either section 10505 or section 11343(e). As explained below, however, a straightforward analysis of the relevant statutes leads us to conclude that the ICC’s position is untenable.
A. The Meaning of Section 10505(g)
We begin with the language of section 10505(g). The term “intermodal ownership” in subsection (g)(1) is clearly broad enough to include rail-motor acquisitions within its literal scope, and nothing in section 10505 or elsewhere in the statute suggests that the term should be given a narrowing construction. The Commission contends that “intermodal” includes rail-water acquisitions and “perhaps” freight forwarder acquisitions of other carriers, but that it does not include rail-motor acquisitions. Joint Brief for ICC and United States at 32 n. 20. However, this construction is flatly belied by the plain words of the statute itself, and there is nothing in the legislative history of section 10505(g) to suggest that Congress intended something narrower than the literal meaning of the term “intermodal.” Therefore, we cannot accept the ICC’s strained interpretation of section 10505(g).
Indeed, at oral argument, counsel for the Commission conceded that, in the absence of section 11343(e), section 10505(g)(1) would undoubtedly apply to the rail-motor acquisitions in question. Such acquisitions are “otherwise prohibited” for purposes of section 10505(g) unless they satisfy the section 11344(c) criteria. Consequently, ICC counsel conceded that, absent section 11343(e), the Commission would be compelled to evaluate the acquisitions under the criteria of section 11344(c). All parties agree that the criteria under section 11344(c) are more stringent than those of section 11343(e). And, as we have already observed, the application of sections 10505(g)(1) and 11344(c) instead of section 11343(e) would also have significant consequences with respect to labor protection and, according to the ICC, to antitrust immunity as well.
B. The Relationship Among Sections 11343(e), 10505(g)(1) and 11344(c)
In light of the foregoing, it appears that the principal question before this court is whether, by enacting section 11343(e), Congress intended to repeal or modify all or part of sections 10505(g)(1) and 11344(c). We think it is absolutely clear that Congress did not. In reaching this conclusion, we find a number of factors that weigh against inferring such an intent.
1. The Plain Meaning of the Statute
Beginning, as we must, with the plain language of the statute, we note that nothing in the literal terms of section 11343(e) indicates that it was intended to override section 10505(g)(1) or section 11344(c). Indeed, while section 11343(e)(1) applies generally to a “matter related to a motor carrier of property,” section 10505(g)(1) applies specifically to “intermodal ownership,” and section 11344(c) applies specifically “[w]hen a rail carrier, or a person controlled by or affiliated with a rail carrier, is an applicant and the transaction involves a motor carrier.” Whereas the phrase “matter related to a motor carrier of property” in section 11343(e) is ambiguous as to whether it includes only matters in which all participants are motor carriers, or all matters that involve at least one motor carrier, the far more precise language in sections 10505(g)(1) and 11344(c) expressly encompasses rail-motor transactions. It is difficult to imagine that Congress would silently withdraw an entire class of transactions from the scope of sections 10505(g)(1) and 11344(c) by enacting a new statutory provision that does not even clearly include that class of transactions.
Thus, the literal terms of sections 10505(g)(1) and 11344(c) apply to rail-motor transactions, and nothing in the literal terms of section 11343(e) indicates congressional intent to modify or partially repeal sections 10505(g)(1) and 11344(c) or to offer the ICC an alternative to proceeding under those statutes. Nor do we find in the legislative history of section 11343(e) the “clearly expressed legislative intention to the contrary” which would be needed to call into question the clear import of the statute’s language and structure. Burlington Northern R.R. v. Oklahoma Tax Comm’n, — U.S. -, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404 (1987). On the contrary, while our holding is based on the literal language of the statutory provisions at issue, a brief survey of the relevant parts of the legislative history will serve to confirm our conclusion that the ICC’s interpretation of section 11343(e) is erroneous.
2. The Legislative History of Section 11343(e)
The motor carrier exemption embodied in section 11343(e) was originally proposed by former ICC Chairman Reese Taylor in Senate hearings on the Bus Regulatory Reform Act of 1982, Pub.L. No. 97-261, 96 Stat. 1102. At the hearings, Taylor stated on behalf of the Commission:
We believe that it would be preferable to exempt bus companies and motor carriers generally from Commission jurisdiction with regard to mergers, consolidations and acquisitions of control. This change is suggested because we believe that other governmental bodies have sufficient jurisdiction to protect the public interest.
In view of liberalized entry, the number of merger proposals has substantially declined and continued regulation by the Commission of control and acquisition transactions no longer appears necessary. Alternatively, Congress might wish to consider adoption of an exemption along the lines of the Staggers [Rail] Act [of 1980, Pub.L. No. 96-448, 94 Stat. 1895], which could be used to exempt those types of transactions].
Deregulation of the Intercity Bus Industry: Hearings on H.R. 3663 Before the Subcommittee on Surface Transportation of the Senate Committee on Commerce, Science and Transportation, 97th Cong., 2d Sess. 88 (1982) (emphasis added). The Senate adopted Taylor’s second alternative, but narrowed it to exempt only “motor carriers of property,” thus excluding buses from the exemption. See S.Rep. No. 411, 97th Cong., 2d Sess. 31, reprinted in 1982 U.S.Code Cong. & Admin.News 2308, 2338. The Senate Report explained that the proposed exemption would “allow[] the ICC the discretion to exempt small truck company mergers and other transactions from certain statutory requirements.” Id. at 13, reprinted in 1982 U.S.Code Cong. & Admin. News at 2320. Given that Chairman Taylor’s proposal addressed motor carriers only, and given also that the Senate then narrowed his proposal still further to include only a particular type of motor carrier, it strains credulity to suggest, as the intervening respondents do, that the Senate Report's oblique reference to “small truck mergers and other transactionst” reflects an otherwise unarticulated intent to open up this same exemption provision to encompass transactions involving an entire class of carriers other than motor carriers. Surely such a broad proposal would have evoked at least some commentary; yet the legislative history reveals none. The intervening respondents’ suggestion proves even more doubtful when contrasted with the Senate’s statement that the proposed exemption would “not in any way affect the ICC’s jurisdiction with regard to rail transactions under Subchapter III [of Chapter 113] of Title 49 U.S.C.” Id. at 31, reprinted in 1982 U.S.Code Cong., & Admin.News at 2338. Thus, nothing in the Senate history of section 11343(e) suggests that the “motor carrier of property” exemption was intended to override the preexisting statutory provisions that were, and are, expressly applicable to rail-motor ownership. It is difficult to believe that a Senate intending to amend a prior enactment would not only employ statutory terms more ambiguous than the terms of the enactment it intended to amend, but would also fail to clarify its amendatory intent anywhere in the legislative history.
When the House took up the Senate’s proposed exemption, the ICC once again took a position in favor of either eliminating Commission jurisdiction over motor carrier acquisitions or allowing the ICC to exempt such transactions under certain circumstances. In a letter addressed to the Chairman of the House Committee on Public Works and Transportation, Chairman Taylor reiterated that the ICC “recommended elimination of ICC jurisdiction over motor carrier mergers, consolidations and acquisitions of control,” or, “[alternatively, ... adoption of an exemption provision.” Letter from Reese H. Taylor, Jr., Chairman, Interstate Commerce Commission, to Hon. James J. Howard, Chairman, House Committee on Public Works and Transportation (June 8, 1982), reprinted in Brief of Petitioners, Addendum B. As in his previous Senate testimony, Chairman Taylor’s juxtaposition of the proposal to eliminate jurisdiction over acquisitions among motor carriers with the alternative proposal to create “an exemption” strongly suggests that the “exemption” proposed in his letter was similarly circumscribed. Nowhere in this letter did the Chairman suggest exempting rail-motor (or other intermodal) acquisitions.
The House Conference Report proposed retaining the Senate’s exemption and repeated the Senate Report’s statement that this exemption would not affect the ICC’s rail jurisdiction. H.R. Conf.Rep. No. 780, 97th Cong., 2d Sess. 56, reprinted in 1982 U.S. Code Cong. & Admin.News 2342, 2367. Shortly before the compromise bill was passed by both houses, Congressman Anderson, who was the House sponsor of the bill and a member the Conference Committee, made the following statement on the floor of the House:
For motor carriers of property, the conference agreement treats truck mergers differently than mergers of buses. Specifically, the agreement would retain existing law for truck mergers, except that the Commission could exempt a person, class of persons, transaction, or class of transactions for motor carriers of property from the provisions of the law if the Commission finds that the application of these provisions is not necessary or [the transaction is] of limited scope.
128 Cong.Rec. H6692 (daily ed. Aug. 19, 1982) (statement of Rep. Anderson) (emphasis added). Consistent with both the recommendations of Chairman Taylor and the relevant passages in the Senate and Conference Reports, Congressman Anderson’s statement strongly suggests that the exemption was to apply only to transactions among motor carriers.
In short, the legislative history of section 11343(e) offers no support for the ICC’s interpretation. We find no evidence from which to conclude that the phrase “matter related to a motor carrier” as used in that section was intended to encompass rail-motor acquisitions, and we find rather strong suggestions to the contrary. Indeed, to construe that phrase as the ICC suggests without any clear basis in the language of section 11343(e) would be to work a partial repeal by implication of sections 10505(g)(1) and 11344(c). To draw such an inference without any clear evidence of congressional intent would violate the settled rule that repeals by implication are disfavored:
Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.
The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible____ The intention of the legislature to repeal ‘must be clear and manifest.’ ”
Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974) (citations omitted) (quoting United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. at 182, 188, 84 L.Ed. 181 (1939) (quoting Red Rock v. Henry, 106 U.S. (16 Otto) 596, 602, 27 L.Ed. 251 (1882))); see International Bhd. of Teamsters v. ICC, 801 F.2d 1423, 1430 (D.C.Cir.1986). As the preceding discussion indicates, there is no “clear and manifest” evidence of congressional intent to repeal all or part of either section 10505(g)(1) or section 11344(c). Thus, we conclude that the plain language of sections 10505(g)(1) and 11344(c) is controlling, and therefore the ICC must apply both of these statutory provisions to the transactions at issue.
3. The “Notwithstanding" Phrase in Section 11343(e)
Almost as a last gasp effort to bolster its strained argument regarding the meaning of section 11343(e)(1), the Commission cites the preface to that section as somehow determinative of the issues before us. The preface to section 11343(e)(1) reads “[notwithstanding any provisions of this title.” As best we can tell, the Commission appears to claim that this language shows either a congressional intention to amend or override the statutory provisions that otherwise govern intermodal transactions involving one or more motor carriers, or a congressional intention to allow the Commission to choose between two alternative statutory procedures for approving rail-motor transactions. We find both of these contentions to be specious, with the former reflecting nothing more than a failed attempt to recast the repeal-by-implication argument and the latter reflecting an utterly baseless claim that can find no support in the terms of the statute, its legislative history or common sense.
The frailty of the Commission’s argument on the “notwithstanding” phrase is highlighted by the fact that the Commission appears to offer mutually exclusive justifications to support it. In other words, if sections 10505(g)(1) and 11344(c) have been repealed or overridden by section 11343(e), then these provisions cannot be viewed as alternative procedures for the consideration of petitions involving rail-motor acquisitions. The ICC has failed to clarify whether its position rests on only one of these interpretations or on both. Moreover, both of these arguments are inconsistent with the ICC’s third argument, which we have already rejected, that the “intermodal” language in section 10505(g)(1) was never intended to include rail-motor acquisitions in the first place. Thus, the Commission’s interpretation of the relevant statutory provisions is at best ambiguous and at worst makes a mockery of the statutory scheme enacted by Congress.
Even if we could resolve the ambiguities in the Commission’s position, we would still reject it as inconsistent with congressional intent clearly expressed in the language and structure of the statute. It is clear that in these circumstances courts need not defer to administrative agencies on purely legal questions, see UAW v. Brock, 816 F.2d 761, 764-65 (D.C.Cir.1987), and the issue regarding the meaning of the preface in section 11343(e)(1) is just such a question. Recently, in Immigration & Naturalization Service v. Luz Marina Cardoza-Fonseca, — U.S.-, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), the Supreme Court recognized this principle in refusing to defer to a statutory interpretation advanced by the Immigration and Naturalization Service; the Court’s holding in Cardoza-Fonseca is directly relevant to the instant case:
The narrow legal question whether the two standards are the same is, of course, quite different from the question of interpretation that arises in each case in which the agency is required to apply either or both standards to a particular set of facts. There is obviously some ambiguity in a term like “well-founded fear” which can only be given concrete meaning through a process of case-by-case adjudication. In that process of filling “ ‘any gap left, implicitly or explicitly» by Congress,’ ” the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program. But our task today is much narrower, and is well within the province of the judiciary. We do not attempt to set forth a detailed description of how the well-founded fear test should be applied. Instead, we merely hold that the Immigration Judge and the [Board of Immigration Appeals] were incorrect in holding that the two standards are identical.
Id. at 1221-22 (footnotes and citations omitted) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984) (quoting Morton v. Ruiz, 414 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974))). It is this same “narrower” task that we undertake here, where we examine the correctness not of an agency’s application of a particular set of statutory criteria to a particular set of facts, but the agency’s determination of which set of statutory criteria Congress intended it to apply.
One obvious view of the “notwithstanding” language is that, read together with the phrase “matter related to a motor carrier of property,” the introductory phrase refers to those provisions of Title 49 that deal with matters involving only motor carriers of property, not to those provisions that apply to intermodal transactions. Viewed from this perspective, the “notwithstanding” phrase simply does not refer to section 10505(g)(1) at all. Such an interpretation is supported by the literal language of section 11343(e), is not contradicted by its legislative history, and indeed is consistent with the evidence in the legislative history of congressional intent to effect regulatory changes only within the motor carrier industry.
The ICC seeks to avoid this obvious construction by arguing that the “notwithstanding” language in section 11343(e) reflects Congress’ intent to give the ICC a choice between two alternative routes for approving rail-motor transactions. In other words, the ICC argues that when it considers a proposal to exempt a rail-motor transaction, the Commission has the discretion to apply either the statutory provisions that mandate rail labor protection and arguably provide no antitrust immunity — sections 10505(g)(1) and 11344(c) — or the statutory provision that confers antitrust immunity and leaves to the ICC the decision whether to impose labor protection — section 11343(e). Even assuming, arguendo, that section 11343(e) could apply to inter-modal transactions, we can find no support in the statute or the legislative history for the ICC’s claim that Congress gave to the Commission the discretion to decide which statutory provisions to invoke in any given case. Congress certainly did not indicate on what basis the ICC should prefer one approach to the other. Indeed, in the course of this litigation, the ICC has itself taken inconsistent positions, arguing in one breath that it will make the choice based on “whether the primary impact of the transaction (given the ICC’s regulatory responsibilities) is on the railroad or the motor carrier industry,” Joint Brief for ICC and United States at 30, and in the next breath that it will “be guided by the substantive differences in the provisions as they might apply in a particular situation,” id. at 81. These are very different criteria. Even if the ICC could offer a coherent and consistent explanation of the basis upon which it would choose the operative statute, it makes no sense to contend, as the Commission does, that an agency is free to pick and choose between statutory provisions on any ground it sees fit, with no congressional guidance and no rulemaking authority. Cf. Morton v. Mancari, 417 U.S. at 550-51, 94 S.Ct. at 2483. The ICC has offered no evidence whatsoever that Congress intended to give the Commission a free hand in choosing the operative statute. Absent any evidence in support of this novel proposition, the most sensible conclusion is that Congress did not intend to give the ICC such a remarkable degree of discretion.
C. Controlling Principles of Statutory Construction
The Supreme Court has reminded us that, in employing traditional tools of statutory construction, we must consider the language and overall structure of a statute, and its legislative history, to determine congressional intent. See Block v. Community Nutrition Inst., 467 U.S. 340, 349, 104 S.Ct. 2450, 3455, 81 L.Ed.2d 270 (1984). This is a common-sense approach to statutory construction, and it admits of easy application in this case: First, the literal terms of the statute itself and its overall structure (i.e., embodying different procedures for the consideration of petitions involving “matter[s] related to a motor carrier of property” as opposed to those involving “intermodal ownership”) belie the Commission’s strained attempt to nullify sections 10505(g)(1) and 11344(c); second, there are no indications either in the statute or its legislative history suggesting that Congress intended to repeal, override, limit or amend sections 10505(g)(1) and 11344(c) with the enactment of section 11343(e) — indeed, all of the legislative history is to the contrary; third, the Commission’s proposed construction of the statute seeks to rely on a general statutory provision to nullify a specific one, and it fails to give full effect to all relevant provisions of the statute; and, finally, there is nothing in the statute or its legislative history indicating that Congress intended to give the ICC unbridled discretion to choose between the application of section 11343(e) and sections 10505(g)(1) and 11344(c) in its consideration of rail-motor acquisitions. With these considerations in mind, we reject the Commission’s position because it is plainly at odds with every principle of statutory construction that is pertinent to this case. The simple point here is that the Commission has no authority to bypass the requirements of sections 10505(g)(1) and 11344(c) with respect to rail-motor acquisitions.
Although the ICC purported to make alternative findings under section 11344(c) in the July 1985 Decision and the January 1986 Decision, we reject these findings as inadequate. For one thing, the Commission’s position changed significantly from one decision to the next, so we have no assurance of any clear basis for the rulings here under challenge. Furthermore, the so-called alternative findings were supported with only cursory analysis, far short of what would be sufficient to permit informed judicial review. Finally, even the ICC acknowledges that the substantive consequences of proceeding under sections 10505(g)(1) and 11344(c) are critically different from the consequences of a determination under section 11343(e). For these reasons, we cannot uphold the decisions of the ICC. Accordingly, we grant the petitions for review, reverse the decisions of the Commission granting Burlington Northern’s exemption requests, and remand these matters for reconsideration solely under sections 10505 and 11344(c).
So ordered.
. Because no party has placed the question at issue, we venture no opinion as to the correctness of the ICC’s conclusion that acquisitions to which sections 10505(g)(1) and 11344(c) apply are not immune from antitrust scrutiny.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES v. PREECE.
No. 1381.
Circuit Court of Appeals, Tenth Circuit.
Oct. 6, 1936.
Randolph C. Shaw, Sp. Asst, to the Atty. Gen. (Will G. Beardslee, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst, to the Atty. Gen., and Dan B. Shields, U. S. Atty., of Salt Lake City, Utah, on the brief), for the United States.
Clarence Baird, of Salt Lake City, Utah (Joseph G. Jeppson and Geo. A. Faust, both of Salt Lake City, Utah, on the brief), for appellee.
Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.
BRATTON, Circuit Judge.
This is an action to recover automatic insurance benefits. Plaintiff enlisted in the military service May 5, 1917, and was discharged September 22, 1917. He alleged that he became totally and permanently disabled during service; a jury returned a verdict in his favor; judgment was entered thereon, and the government appealed. Three contentions are advanced for reversal: (1) That all subsisting provisions for claims for automatic insurance were repealed by section 17 of the Economy Act of 1933 (38 U.S.C.A. §§ 717, 718); (2) that the suit was not filed within the time prescribed by law; and (3) that there is an absence of substantial evidence to establish total and permanent disability during service. Believing that the second question is decisive and eliminates all necessity of discussing the others, we proceed to its consideration.
Article 4 of the War Risk Insurance Act of 1917 authorized the issuance of insurance to commissioned officers, enlisted men, and other persons named therein. The relevant part of section 401 (40 Stat. 409) provides: “That such insurance must be applied for within one hundred and twenty days after enlistment or after entrance into or employment in the active service and before discharge or resignation, except that those persons who are in the active war service at the time of the publication of the terms and conditions of such contract of insurance may apply at any time within one hundred and twenty days thereafter and while in such service. Any person in the active service on or after the sixth day of April, nineteen hundred and seventeen, who, while in such service and before the expiration of one hundred and twenty days from and after such publication, becomes or has become totally and permanently disabled or dies, or has died, without having applied for insurance, shall be deemed to have applied for and to have been granted insurance, payable to such person during his life in monthly installments of $25 each.” That provision was amended by section 19 of the act of June 25, 1918 , but the amendment has no bearing here. The act plainly made an automatic award of insurance, and a person who became totally and permanently disabled while in the active military service between April 6th and the date on which the statute became effective is clearly within its terms. Plaintiff invokes its provisions, and we shall assume, without deciding, that it has not been repealed, but is still in effect.
It is settled to the point of being axiomatic that the United States can be subjected to suit only with its consent; that such consent may be granted with attached conditions or restrictions as to time and place; and that the courts are not free to extend the liability to suit beyond the plain language of the grant. Price v. United States, 174 U.S. 373, 19 S.Ct. 765, 43 L.Ed. 1011; Reid v. United States, 211 U.S. 529, 29 S.Ct. 171, 53 L.Ed. 313; Illinois Cent. R. Co. v. Public Utilities Commission, 245 U.S. 493, 38 S.Ct. 170, 62 L.Ed. 425; United States v. Alberty (C.C.A.) 63 F.(2d) 965.
It was provided in section 405 of the War Risk Insurance Act (40 Stat. 410) that in the event of a disagreement respecting a claim under a contract of insurance, suit could be brought against the United States in the District Court of the District in which the beneficiaries or any one of them resided. The act thus granted consent to be sued and fixed the place at which the right should be exercised, but it was silent as to time; and the first three amendments did not relate to that question. In the absence of a federal statute, the courts applied the statute of limitations of the state in which the suit was filed. Stanley v. United States (D.C.) 23 F.(2d) 870; Jackson v. United States (D.C.) 24 F.(2d) 981 (reversed on other grounds (C.C.A.) 34 F. (2d) 241, 73 A.L.R. 316; Id., 281 U.S. 344, 50 S.Ct. 294, 74 L.Ed. 891); United States v. Sligh (C.C.A.) 24 F.(2d) 636 (judgment vacated because act of May 29, 1928, had become effective and applied. Sligh v. U. S., 277 U.S. 582, 48 S.Ct. 600, 72 L.Ed. 998). The act of May 29, 1928 added a provision that suit should not be allowed under the section unless it be brought within six years after the right of action accrued or within one year from the effective date of the act, whichever is the later date; that the right of action should be deemed to have accrued on the happening of the contingency on which the claim is founded; and that in computing the time the period intervening between the filing of the claim in the Bureau and its rejection should be excluded. That was the initial federal statute fixing the time within which such a suit must be instituted, and it' applied to all kinds of war risk insurance. Then came the act of July 3, 1930. Section 4 (38 U.S.C.A. § 445) re-enacted the provision authorizing suits against the United States and provided that no suit on yearly renewable term insurance should be allowed unless brought within six years alter the cause of action accrued or within one year after the date on which the act was approved, whichever is later; and that no suit should be allowed on converted insurance unless brought within six years after the cause of action accrued. Like provision was made for the exclusion of the time intermediate the filing of the claim and its rejection. It will be noted that in departure from the earlier statute the provision is textually confined to yearly renewable term insurance and converted insurance. Automatic insurance is neither renewable term insurance nor converted insurance. It cannot become effective unless the soldier dies or becomes totally and permanently disabled. In either event, it is a matured claim at the time it is issued; and it cannot be renewed or converted. It must be presumed that the Congress had these distinguishing attributes in mind at the time the statute was enacted. The material change in language can be given no other rational effect than a considered legislative intent to confine the newly fixed time to yearly renewable term insurance and converted insurance and to exclude all other kinds. A contrary conclusion would do violence to recognized rules of statutory construction. Accordingly, automatic insurance does not come within the extended period provided by that act.
Decision of this case does not present need for exploration as to whether the act of 1928 was thus repealed in respect to automatic insurance or by some legerdemain remained intact, because the result is the same in either event. The right of action accrued in 1917. If is alleged in the complaint that the claim was presented to the Bureau in May, 1931; that it was rejected in July, 1931; that the period elapsing between the filing and the denial exceeded fourteen months; and that a disagreement has existed since July, 1932. There is a manifest conflict in the allegations as to whether the claim was rejected in 1931 or in 1932. No proof was offered to clarify the conflict, but it was stipulated that there was no question as to a disagreement, and we are persuaded that rejection occurred in the latter year. The suit was filed in August, 1932. If the statute was not repealed, the suit came too late because it was instituted more than six years after the right of action accrued and more than one year after the date on which the act was approved, excluding the period during which the claim pended before the Bureau. If the statute was repealed, the domestic law of the state applies, and it provides that an action on contract shall be commenced within six years after the right of action accrued. Section 104-2-22, Revised Statutes of Utah 1933. Excluding the period during which the claim awaited action in the Bureau, the suit was begun long after the permitted time expired. In either circumstance, plaintiff waited too long to institute the suit and that extinguished the remedy. Finn v. United States, 123 U.S. 227, 8 S.Ct. 82, 31 L.Ed. 128; Lynch v. United States (C.C.A.) 80 F.(2d) 418; United States v. Valndza (C.C.A.) 81 F.(2d) 615; Miller v. United States (D.C.) 57 F.(2d) 889; Henry v. United States (D.C.) 15 F.Supp. 651.
The judgment is reversed, and the cause remanded.
40 Stat. 398, 409, § 400 et seq.
40 Stat. 614.
Act May 20, 1918, 40 Stat. 555. Act June 7, 1924, 43 Stat. 607. Act March 4, 1925, 43 Stat. 1302.
45 Stat. 961, § 1.
46 Stat. 991.
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_casesource
|
110
|
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.
UPHAM et al. v. SEAMON et al.
No. 81-1724.
Decided April 1, 1982
Per Curiam.
After the 1980 census, Texas’ congressional delegation increased from 24 to 27 members. A reapportionment plan, Senate Bill No. 1 (SB1), was enacted on August 14, 1981, and then submitted to the Attorney General for preclearance. While it was pending before him, suit was filed in the Federal District Court for the Eastern District of Texas challenging the constitutionality of SB1 and its validity under §2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U. S. C. § 1973. A three-judge court was empaneled, held a hearing, and delayed any further action until after the Attorney General acted. On January 29, 1982, the Attorney General entered an objection to SB1. Specifically, he objected to the lines drawn for two contiguous districts in south Texas, Districts 15 and 27. He stated that the State “has satisfied its burden of demonstrating that the submitted plan is nondiscriminatory in purpose and effect” with respect to the other 25 districts. In the face of this objection, which made SB1 unenforceable, and the obvious unconstitutionality of the prior apportionment plan, the court ordered the parties to provide written submissions along with maps, plats, and other data to aid the court in reaching a court-ordered reapportionment plan. A hearing was held on February 9. The court then proceeded to resolve the Attorney General’s objection to Districts 15 and 27. 536 F. Supp. 931. All other districts of the court’s plan, except for those in Dallas County, were identical to those of SB1. The court devised its own districts for Dallas County, and it is that part of the District Court’s judgment that is on appeal here. A stay and expedited consideration are requested.
Judge Sam Johnson and Judge Justice wrote separately, but agreed that SBl’s plan for Dallas County could not be implemented. Judge Justice alone determined that the SB1 plan for Dallas County was unconstitutional. In Judge Johnson’s view, since SB1 was a nullity, the entire plan had to be a court-ordered plan which must conform to § 5, 42 U. S. C. § 1973c, standards, including the “no retrogression rule” of Beer v. United States, 425 U. S. 130 (1976). However, he thought that in two respects the standards applicable to court-ordered plans were stricter than those that must be observed by a legislature: population equality and racial fairness. Judicial application of the no retrogression standard, in his view, is limited to consideration of purely numerical factors; unlike a legislature, a court cannot consider the “innumerable political factors that may affect a minority group’s access to the political process.” 536 F. Supp., at 948. Although a court must defer to legislative judgments on reapportionment as much as possible, it is forbidden to do so when the legislative plan would not meet the special standards of population equality and racial fairness that are applicable to court-ordered plans.
SBl’s treatment of Dallas County failed to meet the test of racial fairness for a court-ordered plan. Under SB1, minority strength in District 5, in Dallas County, would have gone from 29.1 percent to 12.1 percent. Apparently, the minority votes had been shifted to District 24, which increased in minority population from 37.4 percent to 63.8 percent. Judge Johnson reasoned that this change would reduce minority effectiveness in District 5 substantially and would not guarantee a “safe” seat in District 24. This “would result in a severe retrogression in the Dallas County area.” Id., at 957, n. 39. He specifically recognized that SBl’s plans for Dallas County had been formulated in response to the interests expressed by minority voters in creating a “safe” seat. He did not hold this legislative response to be unconstitutional, nor did he criticize it as inconsistent with § 5 as it applied to legislative redistricting. A court, however, could not, in his view, consider the same factors as a legislature. The court, therefore, redrew the boundaries of Districts 5 and 24, and the two adjoining Districts, 3 and 26. Under the court-ordered plan, District 5 would have a minority population of 31.87 percent and District 24 would have 45.7 percent.
Appellants, who are Republican Party officials in Texas, contend that the District Court simply substituted its own reapportionment preferences for those of the state legislature and that this is inconsistent with Wise v. Lipscomb, 437 U. S. 535 (1978); McDaniel v. Sanchez, 452 U. S. 130 (1981); and White v. Weiser, 412 U. S. 783 (1973). They argue that in the absence of any objection to the Dallas County districts by the Attorney General, and in the absence of any finding of a constitutional or statutory violation with respect to those districts, a court must defer to the legislative judgments the plans reflect, even under circumstances in which a court order is required to effect an interim legislative apportionment plan. We agree and, therefore, summarily reverse.
The relevant principles that govern federal district courts in reapportionment cases are well established:
“From the beginning, we have recognized that ‘reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.’ We have adhered to the view that state legislatures have ‘primary jurisdiction’ over legislative reapportionment. . . . Just as a federal district court, in the context of legislative reapportionment, should follow the policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution, we hold that a district court should similarly honor state policies in the context of congressional reapportionment. In fashioning a reapportionment plan or in choosing among plans, a district court should not pre-empt the legislative task nor ‘intrude upon state policy any more than necessary.’” White v. Weiser, 412 U. S., at 794-795 (citations omitted).
Weiser itself presents a good example of when such an intrusion is not necessary. We held there that the District Court erred when, in choosing between two possible court-ordered plans, it failed to choose that plan which most closely approximated the state-proposed plan. The only limits on judicial deference to state apportionment policy, we held, were the substantive constitutional and statutory standards to which such state plans are subject. Id., at 797.
We reached a similar conclusion in Whitcomb v. Chavis, 403 U. S. 124, 160-161 (1971), in which we held that the District Court erred in fashioning a court-ordered plan that rejected state policy choices more than was necessary to meet the specific constitutional violations involved. Indeed, our decision in Whitcomb directly conflicts with the lower court’s order in this case. Specifically, we indicated that the District Court should not have rejected all multimember districts in the State, absent a finding that those multimember districts were unconstitutional. Ibid. We reached this conclusion despite the fact that we had previously held that “when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multimember districts as a general matter.” Connor v. Johnson, 402 U. S. 690, 692 (1971). See also Chapman v. Meier, 420 U. S. 1, 19 (1975) (indicating that court-ordered plans should, in some circumstances, defer to, or respect, a state policy of multimember districting).
It is true that this Court has held that court-ordered reapportionment plans are subject in some respects to stricter standards than are plans developed by a state legislature. Wise v. Lipscomb, supra, at 540; Connor v. Finch, 431 U. S. 407, 414 (1977). This stricter standard applies, however, only to remedies required by the nature and scope of the violation: “The remedial powers of an equity court must be adequate to the task, but they are not unlimited.” Whitcomb v. Chavis, supra, at 161. We have never said that the entry of an objection by the Attorney General to any part of a state plan grants a district court the authority to disregard aspects of the legislative plan not objected to by the Attorney General. There may be reasons for rejecting other parts of the State’s proposal, but those reasons must be something other than the limits on the court’s remedial actions. Those limits do not come into play until and unless a remedy is required; whether a remedy is required must be determined on the basis of the substantive legal standards applicable to the State’s submission.
Whenever a district court is faced with entering an interim reapportionment order that will allow elections to go forward it is faced with the problem of “reconciling the requirements of the Constitution with the goals of state political policy.” Connor v. Finch, supra, at 414. An appropriate reconciliation of these two goals can only be reached if the district court’s modifications of a state plan are limited to those necessary to cure any constitutional or statutory defect. Thus, in the absence of a finding that the Dallas County reapportionment plan offended either the Constitution or the Voting Rights Act, the District Court was not free, and certainly was not required, to disregard the political program of the Texas State Legislature.
Although the District Court erred, it does not necessarily follow that its plan should not serve as an interim plan governing the forthcoming congressional elections. The filing date for candidates, which was initially postponed by the District Court, has now come and gone. The District Court has also adjusted other dates so that the primary elections scheduled for May 1 may be held. The State of Texas, although it disagrees with the judgment of the District Court with respect to Dallas County, urges that the election process should not now be interrupted and a new schedule adopted, even for Dallas County. It is urged that because the District Court’s plan is only an interim plan and is subject to replacement by the legislature in 1983, the injury to appellants, if any, will not be irreparable.
It is true that we have authorized District Courts to order or to permit elections to be held pursuant to apportionment plans that do not in all respects measure up to the legal requirements, even constitutional requirements. See, e. g., Bullock v. Weiser, 404 U. S. 1065 (1972); Whitcomb v. Chavis, 396 U. S. 1055 (1970). Necessity has been the motivating factor in these situations,
Because we are not now as familiar as the District Court with the Texas election laws and the legal and practical factors that may bear on whether the primary elections should. be rescheduled, we vacate the District Court judgment and remand the case to that court for further proceedings. See Connor v. Waller, 421 U. S. 656 (1975); Wesberry v. Sanders, 376 U. S. 1, 4 (1964). Having indicated the legal error of the District Court, we leave it to that court in the first instance to determine whether to modify its judgment and reschedule the primary elections for Dallas County or, in spite of its erroneous refusal to adopt the SB1 districts for Dallas County, to allow the election to go forward in accordance with the present schedule.
The judgment of the Court shall issue forthwith.
So ordered.
His objection, however, went to the entire plan, and on February 23, he refused the State’s request that the objection be severed and addressed to only a portion of SB1 (but see n. 7, infra).
The existing apportionment plan created only 24, not 27 districts, and the changes in population over the past 10 years had created extreme numerical variations between the districts, which were unconstitutional under the one-man, one-vote rule.
Judge Parker dissented from the relevant part of the court order — he would have followed SB1 in Dallas County.
The relevant passage of Judge Johnson’s opinion reads as follows:
“This Court recognizes that certain minority group members expressed a desire for a ‘safe’ minority district in Dallas County. After consideration of numerous political factors, and substantial legislative battling, the Texas Legislature decided on the configurations in S.B.l .... The legislature was at liberty to engage in such considerations. This Court, in fashioning a nonretrogressive apportionment plan does not have that privilege. It must evaluate the new plan without access to questions regarding the ability of separate minority groups to form coalitions or other political concerns. ... It is not before this Court to determine whether considerations valid in the legislative context justify simply increasing swing-vote influence in one district at the expense of the influence previously enjoyed in a neighboring district. This Court determines, however, that, in the context of a court-ordered apportionment plan, such a trade-off would result in a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” 536 F. Supp., at 957, n. 9.
Appellants are supported in this appeal by the State of Texas. While Texas agrees with them on the merits of this case and supports a summary reversal of the District Court decision, it asks that this Court delay any remedial action until after the 1982 elections. In other words, Texas chai-lenges the merits of the District Court decision, but contends that it would be too disruptive and expensive to attempt to alter the 1982 elections at this point.
Appellants propose two other arguments. First, under Texas law an invalid statutory provision is severable. Therefore, the fact that the Attorney General objected to the validity of SBl’s district lines for 2 districts did not invalidate the plans for the other 25 districts. Second, the “stricter standards” applicable to court-ordered plans apply only to the use of multimember districts and population variations beyond a de minimis amount. In particular, this “stricter standard” does not apply to plans that have already been precleared by the Attorney General. In light of our disposition of the case, we need not reach either of these arguments.
The Attorney General took the same position in declining to grant preclearance to that portion of SB1 that he did not find objectionable:
“Since the federal district courts will be acting in the stead of the Legislature we believe that the courts should attempt to effectuate the legislative judgment to the extent possible and modify the Legislature’s plans only as necessary to meet the concerns raised in the objection letters. In other words, we believe the court should make such modifications to the plans as would normally be made by the Legislature if it were in session.” App. to Juris. Statement F-3 (letter of Wm. Bradford Reynolds, Assistant Attorney General, to Texas Secretary of State).
In this Court, the Solicitor General takes a slightly different position. He contends that the question of what weight a district court should give to a legislative plan that is partially objected to by the Attorney General is substantial and, therefore, merits plenary consideration by this Court.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
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021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
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035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
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043. Colorado U.S. District Court
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045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
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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
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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
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204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_district
|
B
|
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".
Arthur J. BURTON, Petitioner-Appellant, v. Dale E. FOLTZ, Respondent-Appellee.
No. 85-1363.
United States Court of Appeals, Sixth Circuit.
Argued Sept. 23, 1986.
Decided Feb. 2, 1987.
Rehearing and Rehearing En Banc Denied March 23, 1987.
Mark H. Magidson (argued), Detroit, Mich., for petitioner-appellant.
Thomas A. Kulick (argued), Lansing, Mich., for respondent-appellee.
Before WELLFORD, MILBURN and BOGGS, Circuit Judges.
MILBURN, Circuit Judge.
Petitioner-appellant Arthur Jackson Burton appeals the decision of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner argues that: (1) the law of the case doctrine precludes reconsideration by this court of issues decided on the appeal of his first petition for habeas relief; (2) the jury instruction in the state court impermissibly shifted the burden of proof on intent in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); and (3) the Sandstrom error was not harmless under the standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). As we agree with the decision of the district court and in view of the Supreme Court’s recent decision in Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), we affirm.
I.
Petitioner Arthur J. Burton’s conviction for assault with intent to murder arises from the stabbing of Deborah Boulley, his former girl friend and the mother of their young daughter. On November 29, 1973, petitioner went to Boulley’s home to discuss their relationship and the future of their child. When Boulley opened her door, petitioner forced his way into her house and held a gun to Boulley’s head. He first attempted to convince her that he did not plan to harm her by removing the bullets from his gun.
However, when Boulley attempted to get away from him and to lock herself in her bathroom, petitioner followed her and began to stab her with a penknife. After being stabbed in the arms, neck, back, and chest approximately thirty times, Boulley fell to the floor. Petitioner then stabbed her seven or eight more times and left her in the bathroom while he ransacked the house in order to make it appear that the assault occurred during a burglary. He returned fifteen or twenty minutes later and asked Boulley whether she was still alive. When she responded, he stabbed her another eight times and threatened to kill their daughter.
Subsequently, he carried her into the bedroom and promised not to kill her if she would swear on the Bible that she would not reveal what had occurred. She did so, and he called for an ambulance. In May 1974, six months after the assault, Boulley informed the police that petitioner was her assailant.
PROCEDURAL HISTORY
On July 22, 1985, following a jury trial, petitioner was convicted in the Recorder’s Court for the City of Detroit on the charge of assault with intent to murder. At the trial, the judge gave the jury an extensive charge on the issue of intent. The instruction included the following illustration challenged by petitioner:
Now I have given you some illustrations. I hope you remember those. That if a person say pointed a gun at a man’s toe and shot him, that would be one thing, but if the person pointed the gun at somebody’s head and fired on him and later on said well I didn’t intend to kill him, I just intended to hurt him, you see the law presumes that an ordinary human being intends the ordinary consequences of his or her acts. You couldn’t run back and say, oh, well, I didn’t intend it to go that far, when you pointed it or you actually fired on somebody at a vital — at a portion of the person’s body. (Emphasis supplied).
Petitioner was sentenced to life imprisonment. The Michigan Court of Appeals affirmed the conviction, People v. Burton, No. 25591 (Mich.App.1977), and the Michigan Supreme Court denied leave to appeal.
Thereafter, Burton filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the district court for the eastern district of Michigan. The district court denied the petition on February 4, 1980. We reversed and remanded with instructions to grant the writ, concluding that the jury instruction deprived petitioner of due process of law by shifting the burden of proof on the issue of intent. Burton v. Bergman, 649 F.2d 428 (6th Cir.1981). Furthermore, we determined that the error was not harmless because “the jury might have entertained a reasonable doubt” that petitioner possessed the requisite intent. Id. at 432. The Supreme Court vacated this court’s decision and remanded for reconsideration in light of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), which requires dismissal of habeas corpus petitions containing exhausted and unex-hausted claims. Bergman v. Burton, 456 U.S. 953, 102 S.Ct. 2026, 72 L.Ed.2d 478 (1982).
On remand, the district court allowed petitioner to amend his petition and granted the writ. We again reversed in an unpublished opinion on the ground that the district court erred by allowing an amendment instead of dismissing the petition. Burton v. Bergman, 729 F.2d 1460 (6th Cir.1984). Subsequently, the district court dismissed the petition.
Petitioner then filed a second petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the second petition, and Burton filed this appeal raising the following issues:
A. whether the law of the case doctrine bars reconsideration of issues decided in the appeal of his first petition for habeas relief;
B. whether the jury instruction imper-missibly shifted the burden of proof on the issue of intent in violation of Sandstrom v. Montana, 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39] (1979); and
C. whether the alleged Sandstrom error was harmless under the standard set forth in Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967).
II.
A.
Petitioner contends that this court is precluded from reconsidering issues decided in his first appeal. Specifically, he argues that we are bound by the determination of a prior panel of this court that “the inference that petitioner intended to murder Ms. Boulley when he assaulted her is by no means inescapable.” Burton, 649 F.2d at 432.
As discussed above, our prior decision reversing and remanding to the district court with instructions to grant the writ was vacated by the Supreme Court. Consequently, we must now determine whether our prior vacated decision is in any way binding as the law of the case in the present appeal, which involves petitioner’s second petition for habeas relief.
In Harrington v. Vandalia-Butler Board of Education, 649 F.2d 434 (6th Cir.1981), we determined that “a judgment on the merits ... will be deprived of its conclusive effect only if it is vacated, reversed, or set aside on direct appeal.” Id. at 438 (emphasis supplied). Although this statement is properly characterized as dictum, it is supported by decisions from other circuits. See, e.g., De Nafo v. Finch, 436 F.2d 737, 740 (3d Cir.1971) (per curiam). Furthermore, in Johnson v. Board of Education, 457 U.S. 52, 102 S.Ct. 2223, 72 L.Ed.2d 668 (1982) (per curiam), the Supreme Court vacated a judgment and declared that the law of the case doctrine would not constrain the district court or court of appeals upon reconsideration of the case.
Petitioner contends that the prior decision as to his first petition should be given effect as the law of the case because the prior decision was vacated on procedural and not substantive grounds. He relies on Hill v. Western Electric Co., 672 F.2d 381 (4th Cir.), cert. denied, 459 U.S. 981, 103 S.Ct. 318, 74 L.Ed.2d 294 (1982), in which the court determined that it may be appropriate to reinstate the findings and conclusions supporting a judgment vacated on procedural grounds once the defect has been cured. Id. at 388 (emphasis supplied). “The critical limiting factor is of course that the error or defect must not have infected the merits of the very determination sought to be reinstated.” Id. Hill does not stand for the proposition that such findings must be reinstated.
Even if we were persuaded by the rationale in Hill, its application would not require the reinstatement of the findings made in the prior determination of the petitioner’s first petition for habeas relief. We conclude that the proper approach is reflected by the statement in Harrington that a vacated judgment is deprived of its conclusive effect. 649 F.2d at 438. Consequently, the prior determination by this court as to the first petition is not binding on this panel.
Another factor mitigates in favor of this conclusion. In this court’s prior determination, the panel appeared to be influenced by precedent in which we had, for purposes of the harmless error analysis, distinguished cases in which intent was contested from cases in which it was not. Burton, 649 F.2d at 432 n. 4. As discussed more fully below, the Supreme Court’s decision in Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), minimizes the importance of this distinction. A well-established exception to the law of the case doctrine operates to allow reconsideration of issues determined in prior proceedings when the controlling law has been changed. See, e.g., Amen v. City of Dearborn, 718 F.2d 789, 793-94 (6th Cir.1983), cert. denied, 465 U.S. 1101, 104 S.Ct. 1596, 80 L.Ed.2d 127 (1984); In re United States Steel Corp., 479 F.2d 489, 493-94 (6th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973).
B.
In Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the Supreme Court held that a criminal defendant’s due process rights are violated when he is convicted on the basis of a jury instruction which a reasonable juror may interpret to shift the burden of proof on an element of the crime or to create a conclusive presumption with respect to an element of the crime which must be proved by the state beyond a reasonable doubt. In the present case, the jury was instructed that “the law, presumes that an ordinary human being intends the ordinary consequences of his or her acts.” We agree with the district court’s conclusion that this charge is “virtually indistinguishable” from the one found to be constitutionally defective in Sandstrom, and that the instruction unconstitutionally shifted the burden of proof on the issue of intent to the petitioner.
However, even though the trial court erred in giving the instruction quoted above, petitioner's conviction will be upheld if the error was harmless beyond a reasonable doubt. Rose, — U.S. at -, 106 S.Ct. at 3108-09; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We. have consistently held that a Sandstrom instruction may be harmless error under certain circumstances. Logan v. Abshire, 778 F.2d 283 (6th Cir.1985) (per curiam) (defendant admitted premeditation); Martin v. Foltz, 773 F.2d 711 (6th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986) (defense of non-participation); Engle v. Koehler, 707 F.2d 241 (6th Cir.1983) (per curiam) (error not harmless when intent was contested), aff'd by an equally divided Court, 466 U.S. 1, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984); United States v. Crowder, 719 F.2d 166, 173 (6th Cir.1983) (en banc) (error harmless when instruction had “little or no application to any contested issue in the case”), cert. denied, 466 U.S. 974, 104 S.Ct. 2352, 80 L.Ed.2d 825 (1984); United States v. Williams, 665 F.2d 107 (6th Cir.1981) (error not harmless when element of knowledge was contested). Application of the harmless error standard permits the reviewing court to uphold the conviction only if it “may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, — U.S. -, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986); see Merlo v. Bolden, 801 F.2d 252, 257 (6th Cir.1986).
Petitioner contends that, because his defense at trial was predicated on the presumption of innocence and the state’s burden of proving every element of the crime beyond a reasonable doubt, the error in this case cannot be harmless. He relies on a series of decisions in which this court emphasized the prejudicial effect of a Sand-strom instruction when the defendant contested the element of intent. This analysis was explained in Engle v. Koehler, 707 F.2d at 246:
If the defendant acknowledges that an intentional, malicious killing occurred and only claims non-participation, then a Sandstrom instruction may be harmless. Conversely, if the defendant asserts lack of mens rea, a Sandstrom instruction can be extremely prejudicial even if overall proof of intent or malice is substantial.
See Martin, 773 F.2d at 719; Conway v. Anderson, 698 F.2d 282, 285 (6th Cir.), cert. denied, 462 U.S. 1121, 103 S.Ct. 3092, 77 L.Ed.2d 1352 (1983).
Despite petitioner’s contentions concerning the nature of his defense at trial, the •district court found, and we are inclined to agree, that petitioner’s defense was non-participation. However, even if we assume that petitioner’s intent was in issue, that determination will not necessarily preclude a finding of harmless error. The Supreme Court has recently determined that a Sandstrom error can be harmless even when the element of intent is contested. Rose, — U.S. at-, 106 S.Ct. at 3108-09. As earlier indicated, the question is whether, upon consideration of the whole record, “the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.” Id. at-, 106 S.Ct. at 3109 (quoting Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 983 n. 5, 74 L.Ed.2d 823 (1983) (Powell, J., dissenting)).
In Rose, the respondent was convicted in a Tennessee court on two counts of murder. He sought habeas corpus relief on the ground that the jury instruction unconstitutionally shifted the burden of proof on the issue of malice. The district court found that the instruction violated respondent’s due process right and that the error could not be harmless because respondent defended on the ground that he lacked the requisite intent to commit the crime. Clark v. Rose, 611 F.Supp. 294, 299-302 (M.D.Tenn.1983). This court affirmed in an unpublished opinion. Clark v. Rose, 762 F.2d 1006 (6th Cir.1985).
The Supreme Court reversed, holding that a Sandstrom error “is not ‘so basic to a fair trial’ that it can never be harmless.” Rose, — U.S. at-, 106 S.Ct. at 3107. When review of the record as a whole indicates that the evidence of intent is “overpowering,” a finding of harmless error is appropriate. Id. at-, 106 S.Ct. at 3108-09.
Thus, to the extent that Conway, En-gle and Martin instruct that a Sand-strom error cannot be harmless where a defendant challenges the element of mens rea, they are modified by Rose and no longer represent the correct statement of the law in this Circuit. In light of Rose, our determination of whether a Sandstrom instruction is harmless will no longer be “largely a function of the defense asserted at trial.” Engle, 707 F.2d at 246; see also Conway, 698 F.2d at 285. Rather, we will apply the traditional Chapman harmless error analysis to determine whether the record, examined in its entirety, establishes guilt beyond a reasonable doubt. The specific inquiry in a Sandstrom case will be “whether the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.” Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 973 n. 5, 74 L.Ed.2d 823 (1983) (Powell, J., dissenting) (approved in Rose v. Clark, 106 S.Ct. at 3109).
Merlo, 801 F.2d at 257.
Application of the foregoing standard to the facts of the instant case supports the conclusion that the district court’s opinion must be affirmed. This is not a case in which the jury was precluded from considering the issue of intent. Cf. Hoover v. Garfield Heights Municipal Court, 802 F.2d 168, 177-78 (6th Cir.1986) (failure to instruct the jury on an essential element of the crime charged precluded application of the harmless error analysis). Rather, this is a case in which the court charged the jury that it could presume intent only if it found that petitioner was guilty of the underlying act charged. In Rose, the Court noted that when “the predicate facts conclusively establish intent, ... the erroneous instruction is simply superfluous: the jury has found, in Winship’s words, ‘every fact necessary’ to establish every element of the offense beyond a reasonable doubt.” — U.S. at-, 106 S.Ct. at 3108 (citation omitted).
In the present case, the jury was required to find, and the guilty verdict establishes that it did find beyond a reasonable doubt, that petitioner was the assailant who attacked Deborah Boulley. Moreover, the undisputed facts in this case create an overwhelming inference of intent. Petitioner stabbed the victim approximately thirty-seven times. After he ransacked the house and returned to find that she was still alive, he stabbed her another eight times. Under circumstances such as these, we are confident in concluding “beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.” Merlo, 801 F.2d at 257 (quoting Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 982 n. 5 (Powell, J., dissenting)). Accordingly, we hold that the Sandstrom error was harmless beyond a reasonable doubt.
III.
For the reasons stated, the judgment of the district court dismissing the petition for habeas corpus is AFFIRMED.
. We note that a panel of this court earlier described the theory of the defense as the failure of the prosecutor to prove every element of the case beyond a reasonable doubt. Burton, 649 F.2d at 430. As discussed above, this characterization is not binding upon this panel.
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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songer_dissent
|
1
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
MEYER v. TERRITORY OF HAWAII.
Nos. 11331, 11332.
Circuit Court of Appeals, Ninth Circuit.
Dec. 2, 1947.
DENMAN, Circuit Judge, dissenting.
O. P. Soares, of Honolulu, T. H., for appellant.
Tom Okino, Deputy Atty. Gen., Territory of Hawaii, of Hilo, Hawaii, and A. J. Zirpoli and Henry W. Robinson, both of San Francisco, Cal., for appellee.
Before GARRECHT, DENMAN, and BONE, Circuit Judges.
GARRECHT, Circuit Judge.
In each of these cases, the appellant was convicted of larceny in the first degree, in the Circuit Court of the Third Judicial Circuit of Hawaii. Writs of error were issued and dismissed by the Supreme Court of the Territory. From the judgments dismissing the writs the present appeals have been taken.
The grounds for the Supreme Court’s action are fully set forth in its opinion, 37 Haw. 102, from which we quote in extenso:
“Under the first writ there are nineteen assignments of error and under the second there are twenty-eight, two of the second being expressly abandoned in the briefs. There are thus a total of forty-five assignments submitted for consideration. Nevertheless appellant’s briefs, purportedly a presentation for review, contain no itemized statement whatsoever of the errors counted upon for reversal of the judgments below, although without amplification the briefs tersely state that appellant relies upon ‘each and every one’ of the forty-five assignments of error which cover seventy-one typewritten pages and are incorporated verbatim therein. From this state of the record there arises the question whether the appellant’s briefs reasonably and substantially comply with the rule of this court governing the preparation of briefs so as to merit appellate consideration of the assignments of error. The rule provides inter alia that an appellant’s brief ‘shall contain * * * a specification of the errors which are relied upon.’ (Rules Sup. Ct., 36 Haw. 753, rule 3, par. 1 [d].)
“As stated generally in First Trust Co. v. Cabrinha, 24 Haw. 655 at 657, ‘The rules of the supreme court are provided for the convenience, guidance and protection of all those having business before it and any attempt to ignore or evade the rules should be summarily checked.’ In line therewith, this court repeatedly has emphasized the importance of reasonable and substantial compliance with the above requirement pertaining to an appellant’s brief and sufficiently warned appellants in1 general that failure so to observe it would warrant dismissal. .[Cases cited] The salutary effect of such observance is apparent in that the rule requires an appellant, regardless of the mode of statutory appeal, to list concisely and state explicitly those errors upon which he believes the efficacy of the appeal itself depends so as to enable both opposing counsel and the appellate court to appreciate readily whatever cogency his appeal as such may have without resorting to a digest of the record proper. It further directs their attention to the vital questions to be considered and the controlling points to be discussed on appeal, thus affording opposing counsel a better opportunity to meet and answer them intelligently and thereby placing the appellate court in proper position to determine the appeal in expedition of its calendar. The requirement directly synchronizes with the other requirements of the rule that an appellant’s brief shall also contain ‘a concise * * * statement of the case presenting succinctly * * * the questions involved * * *’ and ‘a brief of the argument exhibiting a clear statement of the points of law * * * to be discussed and the authorities relied upon in support of each point.’ (Rules Sup. Ct., supra, rule 3, par. 1 [c] and [e].) The rule thus serves to consolidate necessary elements of logical approach to and consideration of the subjects of review so that it affirmatively appears from the brief itself that the specified errors relied upon were properly preserved and correlate with the questions involved and the law discussed. (For further comment upon the purpose and function of such a rule see City of Lincoln v. Sun Vapor Street-Light Co., 8 Cir., 59 F. 756, at page 758.)
“In this case the rule is flagrantly violated both in letter and spirit. The appellant’s briefs do not contain any specification of the errors relied upon nor, although presenting a sweeping critique of alleged happenings below, do they purport to discriminate by way of reliance between the crucial and the unimportant. Neither are any portions thereof, either jointly or separately, susceptible to being construed as constituting reasonable and substantial compliance with the requirement of paragraph 1 (d), supra. It is not necessary to pass upon the question whether any of the assignments of error are sufficient as a matter of law in order to say that neither verbatim repetition in the briefs nor the statements therein of the questions involved and briefs of the argument serve or combine to serve the function of a specification of the errors relied upon or possess the requisite quality thereof in respect to brevity and clarity. The assignments advance manifold and multifarious questions which, together with those stated as being involved, are not properly briefed in conformity to the requirement of paragraph 1 (e) supra. In addition, most of the assignments are unduly lengthy and confusing, some are vague, while others embrace divergent points of law. As a result any coherency of presentation for review is destroyed, rendering the questions stated uncertain in application and dissipating whatever force the argument might otherwise have had. Such being the state of the briefs, the requirement of paragraph 1 (d), supra, cannot be evaded by mere statements that the appellant relies upon each and every one of his numerous assignments, nor can he escape thereby the consequences of the fact that his briefs contain no specification of the errors relied upon. Furthermore, the appellant, not having properly briefed the motley array of questions stated and advanced, cannot with reason expect the appellate court to make a painstaking survey of them in order to cull unimportant questions and determine the crucial ones, nor has the right to cast upon it his burden of studying the record and authorities to essay the essential to the maintenance of the appeal and its efficient prosecution.
“In short, the violation and evasion by the appellant’s briefs of the mandatory requirement relative to a specification of the errors relied upon give rise to the very evils it is designed to prevent. Consequently if that mandate is to retain any significance, it must be enforced in this case.”
The appellant contends that the dismissal of the writs of error by the court below deprived him of his constitutional rights to a fair and impartial trial and to the equal protection of the laws.
Properly to assess the appellant’s position, we must consider the extent to which the jurisdiction of Federal and Territorial courts is defined by the Constitution'; the organization, status, and rule-making powers of the Supreme Court of Hawaii; and, finally, the authority, if any, of a Federal appellate tribunal to disturb a Territorial court’s interpretation and application of local law in general, and of its own rules in particular.
The only Federal tribunal specifically referred to in the Constitution is the Supreme Court of the United States. The opening sentence of Article III, Section 1, reads as follows:
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
A fortiori, the Federal appellate power is even more sketchily outlined in the Constitution. Article III, Section 2, Clause 2 provides:
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
At the threshold of this discussion, therefore, it should be borne in mind that, save for the exceptions noted in the foregoing excerpt, the appellate jurisdiction of the Supreme Court itself is defined not by the Constitution but by act of Congress. As far as relates to inferior Federal tribunals —including this court — not only their appellate jurisdiction but their very existence depends upon legislative fiat.
The Supreme Court has recognized as “well settled” the rule “that an appellate review is not essential to due process of law, but is a matter of grace.” Luckenbach S. S. Co. v. United States, 272 U.S. 533, 536, 47 S.Ct. 186, 187, 71 L.Ed. 394. The same tribunal, however, has held that “while the 14th Amendment does not require that a State shall provide for an appellate review in1 criminal cases * * * it is perfectly obvious that where an appeal is provided for, and the prisoner has had the benefit of it, the proceedings in the appellate tribunal are. to be regarded as a part of the process of law under which he is held in custody by the state, and to be considered in determining any question of alleged deprivation of his life or liberty contrary to the 14th Amendment.” Frank v. Mangum, 237 U.S. 309, 327, 35 S.Ct. 582, 587, 59 L.Ed. 969. See also Cochran v. Kansas, 316 U.S. 255, 257, 258, 62 S.Ct. 1068, 86 L.Ed. 1453.
Next to be considered Í9 the place occupied by the Supreme Court of Hawaii in the appellate hierarchy. Upon this question, the Supreme Court of the United States has thrown considerable light. In Waialua Agricultural Co. v. Christian, 305 U.S. 91, 107, 108, 59 S.Ct. 21, 29, 83 L.Ed. 60, the Court, after reviewing certain statutes providing for appeals from the Territorial Supreme Court, continued:
“In each of these successive enactments the Congress has recognized, to some degree, the autonomous position of the Supreme Court of the Territory.
“This recognition is natural. The territorial court has general appellate jurisdiction of cases involving the mores and statutes of an archipelago, the first known compilation of whose, laws appeared in 1842. Isolated until the day of electrical communication and aerial transportation from continuous contact with other peoples, and inhabited by diverse stocks of Oceánica, Asia, Europe and America, it developed, as an independent kingdom, a jurisprudence adapted to its needs. The constitution of Kamehameha III established a Supreme Court of the Kingdom in 1840 and defined its jurisdiction. The common1 law and the civil law were sources of information but not of authority. Until 1892, lacunae were filled by the judges. The laws developed were largely left in force by the Organic Act.”
We turn now to the rule-making power of courts in general, and of the Supreme Court of Hawaii in particular.
The district courts of the United States “may, from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court, * * *, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters in vacation, and otherwise regulate their own practice as may be necessary or convenient for the ■advancement of justice and the prevention of delays in proceedings.” 28 U.S.C.A. § 731. [Emphasis supplied] Cf. Rule 83 of the Federal Rules of Civil Procedure. See also Heckers v. Fowler, 2 Wall. 123, 128, 69 U.S. 123, 128, 17 L.Ed. 759, and Galveston Dry Dock & Const. Co. v. Standard Dredg. Co., 2 Cir., 40 F.2d 442, 444.
The Supreme Court of Hawaii shares in this basic power of a tribunal to prescribe rules for the conduct of its own business. Section 9613 of the Revised Laws of Hawaii 1945 reads as follows:
“Rules. The supreme court may, from time to time, make rules consistent with existing laws for regulating the practice and conducting the business of the court, and thereafter revise such rules at its discretion; but in no case shall have power to impose costs not expressly authorized by law. * * * ”
The rationale of this rule-making power of the courts is thus expounded in Washington-Southern Navigation Company v. Baltimore & Philadelphia Steamboat Company, 263 U.S. 629, 635, 44 S.Ct. 220, 222, 68 L.Ed. 480:
“The function of rules is to regulate the practice of the court and to facilitate the transaction of its business. This function embraces, among other things, the regulation of the forms, operation and effect of process; and the prescribing of forms, modes and times for proceedings. Most rules are merely a formation of the previous practice of the courts. Occasionally, a rule is employed to express, in convenient form, as applicable to certain classes of cases, a principle of substantive law which has been established by statute or decisions.”
Again, in Missouri, K. & T. Ry. Co. v. Kidd, 8 Cir., 146 F. 499, 500, it was said:
“The fact that courts generally observe the convenience and desires of counsel as expressed in their stipulations gives rise sometimes to the impression that conformity with the rules of procedure is solely a matter for the determination of the parties litigant. This may be so in' some cases but certainly not in all. There is a well-defined line of distinction between those rules that are for the benefit of the court and to aid it in the discharge of its duties and those that are for the benefit of parties litigant. [Many cases cited.]”
Within their limited ambit, rules of court have the force of law. In Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F.2d 406, 408, referring to 28 U.S.C.A. § 731, supra, we said:
“Authority exercised within the scope of the statute is unquestionably valid; rules so promulgated have the force of law and are as binding upon appellate courts as a statute.”
See also the Galveston Dry Dock case, supra, 2 Cir., 40 F.2d 442, 444; Paakuku (w.) v. Komoikehuehu, 3 Haw. 642, 644; Estate of Bishop, 5 Haw. 288, 290; 158 A.L.R. 709n.
It is not unreasonable for an appellate court to dismiss an appeal in a case where the appellant has failed to comply with the rules relative to specifications of error- — especially when the court has given previous warnings that the rule will be enforced. Sovereign Camp of the Woodmen of the World v. Jackson, 8 Cir., 97 F. 382, 385; Moline Trust & Savings Bank v. Wylie, 8 Cir., 149 F. 734.
Such previous warnings have been repeatedly given by the Supreme Court of Hawaii. In Territory v. Taok, 33 Haw. 560, 564, the court said:
“The appellant absolutely failed to comply with the provisions of rule 3 (b) of this court that the brief contain ‘a specification of the exceptions or assigned errors which are relied upon.’ Failure to observe this rule may merit dismissal.”
See also Furtado v. Rezents, 33 Haw. 569; Watumull v. Tax Commissioner, 34 Haw. 84, 85-86.
Applying the foregoing principles to the facts of the present case, we find that, in the face of the warnings just referred to, the appellant’s brief did not conform to the rules of the Territorial Supreme Court. Twice in his reply brief before this court, he admits that his brief below was defective:
“Admittedly, in the case at bar, appellant’s claim to the right of review by this Court depends solely on whether the action of the Supreme Court of the Territory of Hawaii, in dismissing appellant’s writ of error for technical defects in his opening brief filed in that Court (particularly in view of that Court’s having overlooked similar defects in briefs of other appellants), involved the Constitution of the United States.”
“For more than eight years prior to its action in this case, the Supreme Court of Hawaii had followed a course of considering on their merits questions sought to be reviewed notwithstanding the briefs of appellants, like the brief in the Hawaii Supreme Court in this matter, did not conform to the rules of that Court.” [Emphasis supplied]
As far as the Territorial court’s eight-year toleration of infractions of its rules is concerned, such forbearance does not prevent that court from finally losing patience with defective brief-writing, particularly after giving repeated warnings to future violators.
In this posture of affairs, what is the responsibility of this court? To what extent can we reach down into a Territorial court and review its interpretation and aplication of its own rules?
These questions go to the very roots of this court’s jurisdiction to review judgments of the Supreme Court of Hawaii, as well as to the manner in which that jurisdiction should be exercised.
The statutory grant of power is found in 28 U.S.C.A. § 225(a), which reads in part as follows:
“(a) Review of final decisions. The circuit courts of appeal [sic] shall have appellate jurisdiction to review by appeal final decisions—
******
“Fourth. In the Supreme Courts of the Territory of Hawaii and of Puerto Rico, in all cases, civil or criminal, wherein- the Constitution or a statute or treaty of the United States or any authority exercised thereunder is involved; * *
The appellant strives to spell out a deprivation of his constitutional rights because the Territorial court “dismissed the writ on a mere technicality.” We do not agree. The appellant does not argue, nor can he argue, that the rule itself is unconstitutional. As we have seen, he admits that he did not conform to a valid rule of the tribunal to which he was appealing. In our view, that ends the case.
When the legislature grants the grace of an appeal, the appellate court has the right to prescribe and to enforce the rules according to which that appeal shall be prosecuted. We have been cited to no authority which holds that, in a case where the appellant is represented by counsel, a court breaches constitutional law by insisting that the statutory right of appeal be exercised according to the lawful rules of that court.
We have already pointed out that rules of court which are not violative of any statute, have the force of law. It consequently becomes pertinent now to inquire to what extent this court will respect the rulings of the Supreme Court of Hawaii on questions of local law.
In Waialua Agricultural Co. v. Christian, supra, 305 U.S. at pages 108, 109, 59 S.Ct. at page 30, 83 L.Ed. 60, the Court said:
“This judicial tradition gives present substance to the rule of this Court that deference will be paid the understanding of territorial courts on matters of local concern.
* , * * * * *
“While the 34th section of the Judiciary Act is not applicable to territories, the arguments of policy in favor of having the state courts declare the law of the state are applicable to the question of whether or not territorial courts should declare the law of the territories with the least possible interference. It is true that under the appeal statute the lower court had complete power to reverse any ruling of the territorial court on law or fact but we are of the opinion that this power should be exercised only in cases of manifest error. * * * In so far as the decisions of the Supreme Court of Hawaii are in conformity with the Constitution and applicable statutes of the United States and are not manifestly erroneous in their statement or application of governing principles, they are to be accepted as stating the law of the Territory. Unless there is clear departure from ordinary legal principles, the preference of a federal court as to the correct rule of general or local law should ■not be imposed upon Hawaii[Emphasis supplied]
See also De Castro v. Board of Commissioners, 322 U.S. 451, 459, 64 S.Ct. 1121, 88 L.Ed. 1384.
The foregoing rule was applied by this court in a very recent case in which, as here, an interpretation of the Fifth and the Fourteenth Amendments was involved. In Young v. Territory of Hawaii, 9 Cir., 160 F.2d 289, 290, we said:
“The due process clause of the Fourteenth Amendment ‘leaves the states free to enforce their criminal laws under such statutory provisions and common law doctrines as they deem appropriate; and does not permit a party to bring to the test of a decision in this court every ruling made in the course of a trial in the state court,’ Buchalter v. New York , supra, 319 U.S. [427], pages 429, 430, 63 S.Ct. [1129], 1130, 1131 [87 L.Ed. 1492], And the same holds good of the Fifth Amendment in respect of the administration of the criminal laws of the Territory of Hawaii. [Cases cited] It follows that no federal question of substance is presented by the appeal.”
It has been suggested that the Mangum decision, supra, supports the appellant’s position. Yet the opinion in that case, 237 U.S. at pages 334, 335, 35 S.Ct. at page 590, 59 L.Ed. 969, referring to “due process of law,” uses the following language:
“This familiar phrase does not mean that the operations of the state government shall be conducted without error or fault in any particular case, nor that the Federal courts may substitute their judgment for that of the state courts, or exercise any general review over their proceedings, but only that the fundamental rights of the prisoner shall not be taken from him arbitrarily or without the right to be heard according to the usual course of law in such cases.”
See also Rescue Army v. Municipal Court, 331 U.S. 549, 584, 67 S.Ct. 1409.
The elaborate and carefully considered opinion of the court below in the instant case discloses that its dismissal of the writs of error was not done “arbitrarily”.
Applying the teaching of the Supreme Court of the United States in the Waialua Agricultural Co. case, supra, we find that the decision of the Territorial court is “in conformity with the Constitution and the applicable statutes of the United States,” is not “manifestly” erroneous in its “statement or application of governing principles,” and should “be accepted as stating the law of the Territory.”
Therefore, there being no “clear departure from ordinary legal principles,” we are of the opinion that, even if we were to feel that greater leniency might well have been extended to the appellant herein, “the preference of a federal court as to the correct rule of general or local law should not be imposed upon Hawaii.” Waialua Agricultural Co. v. Christian, supra.
Accordingly, the judgments are affirmed.
See also Notley v. McMillan, 9 Cir., 16 F.2d 273; Fukunaga v. Territory of Hawaii, 9 Cir., 33 F.2d 396. 397, certiorari denied, 280 U.S. 593, 594, 50 S.Ct. 39, 74 L.Ed. 611; Kimbrel v. Territory of Hawaii, 9 Cir., 41 F.2d 740, 741; Hill v. Carter, 9 Cir., 47 F.2d 869, 870, certiorari denied, 284 U.S. 625, 52 S.Ct. 10, 76 L.Ed. 532; Territory of Hawaii v. Gay, 9 Cir., 52 F.2d 356, 359, certiorari denied, 284 U.S. 677, 52 S.Ct. 131, 76 L.Ed. 572; Fernandez v. Andrade, 9 Cir., 59 F.2d 681, 683; Lord v. Territory of Hawaii, 9 Cir., 79 F.2d 761, 764; Hawaii Consol. Ry. v. Borthwick, 9 Cir., 105 F.2d 286, 288.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_appnonp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
The DETROIT EDISON COMPANY, Petitioner, Public Service Co. of Indiana, Inc., Intervenor, National Association of Regulatory Utility Commissioners, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and United States of America, Respondents.
Nos. 78-3187, 78-3196.
United States Court of Appeals, Sixth Circuit.
Argued June 17, 1980.
Decided Sept. 5, 1980.
Rehearing and Rehearing En Banc Denied Oct. 22, 1980.
Harry H. Voigt, Michael F. McBride, LeBoeuf, Lamb, Leiby & MacRae, Washington, D. C., for petitioner in No. 78-3187 and for intervenor.
Charles W. Campbell, Plainfield, Ind., for intervenor in No. 8-3187.
Peter A. Marquardt, Detroit, Mich., for petitioner in No. 78-3187.
Stephen S. Ostrach, Sheldon L. Trubatch, U. S. Nuclear Regulatory Comm., Washington, D. C., for respondents in Nos. 78-3187 and 78-3196.
Paul Rodgers, William R. Nusbaum, Nat. Ass’n of Regulatory Utility Commissioners, Charles Gray, Washington, D. C., for petitioner in No. 78-3196.
Stephen F. Eilperin, U. S. Nuclear Regulatory Comm., Washington, D. C., Griffin B. Bell, Atty. Gen. of U. S. Dept, of Justice, James W. Moorman, Edward Shawaker, Anne S. Almy, Washington, D. C., for respondents.
Before BROWN, MARTIN, and JONES, Circuit Judges.
BOYCE F. MARTIN, Jr., Circuit Judge.
This care requires us to rule on the Nuclear Regulatory Commission’s present practice of regulating the location of electric transmission lines constructed in connection with proposed nuclear power facilities. We must determine whether or not the Commission’s policy of conditioning approval of license applications on environmentally acceptable routing of transmission lines exceeds the agency’s authority under the Atomic Energy Act, 42 U.S.C. § 2011 et seq. and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA).
The Commission’s position on transmission line regulation has evolved over the past decade. Prior to the 1969 enactment of NEPA, the Commission perceived its duties under the Atomic Energy Act primarily in terms of protecting the public from radiation hazards. NEPA, however, made “environmental protection a part of the mandate of every federal agency and department . . . [The Commission] is not only permitted, but compelled, to take environmental values into account” in carrying out its regular functions. Calvert Cliffs Coordinating Committee v. AEC, 449 F.2d 1109, 1112 (D.C.Cir. 1971). Under NEPA, federal agencies must “use all practicable means” to avoid environmental “degradation” to the extent consistent with “other essential considerations of national policy.” 42 U.S.C. § 4331(b). Thus, in the early 1970’s the Commission began to consider the environmental implications of proposed nuclear facilities.
By 1974, the Commission had adopted an aggressive approach to its environmental responsibilities in the context of transmission line siting. In that year, the Commission’s Atomic Safety and Licensing Appeal Board ruled that the Commission could, as a condition of licensure, insist that off-site transmission lines built solely to serve a nuclear facility be designed to minimize environmental disturbance. Detroit Edison (Greenwood Energy Center, Units 2 and 3) ALAB-247, 8 A.E.C. 936 (Greenwood).
The response to Greenwood among utility companies and local utility regulatory bodies was immediate. Public Service Company of Indiana and Detroit Edison Company filed a petition for rule-making pursuant to Section 2.802 of the Commission’s Rules of Practice. The proposed rule would have amended 10 C.F.R., Part 50, “Licensing of Production and Utilization Facilities,” by excluding transmission lines and other off-site construction from the Commission’s regulatory ambit. Under the proposal, the Commission could continue to “consider” the probable environmental effects of transmission lines, but could no longer compel the use of an alternative route as a condition of licensure. When notice of Detroit Edison’s petition appeared in the Federal Register, eleven parties, including the National Association of Regulatory Utility Commissioners, filed comments in support of the proposal. The Commission nonetheless denied the petition for rulemaking on February 23, 1978, and Detroit Edison filed a petition for review in this court.
The legal issue before us is essentially jurisdictional. Does the Commission have statutory authority to use its licensing power as a means of mitigating the adverse environmental effects of off-site transmission line construction? If so, what is the source of that authority-the Atomic Energy Act, NEPA, or both?
Petitioners insist that neither the Atomic Energy Act nor NEPA empowers the Commission to regulate off-site transmission lines. They contend, first that the Atomic Energy Act limits the Commission’s regulatory jurisdiction to matters of nuclear safety significance, national defense and security, and certain antitrust questions. In the absence of a showing that electric power lines fall into any of these categories, petitioners conclude that the Commission has exceeded its statutory authority. In support of this argument, they cite Sections 271 and 274(k) of the statute as evidence that Congress intended to reserve the power to regulate transmission lines to state and local agencies. Second, petitioners contend that NEPA confers no substantive jurisdiction on federal agencies. They acknowledge that NEPA permits agencies to “consider” environmental values as part of the decision-making process; they deny, however, that it authorizes active “regulation” beyond the confines of the agencies’ organic statutes.
The Commission, on the other hand, argues that the Atomic Energy Act and NEPA represent independent sources of authority to regulate transmission lines. According to this interpretation, Section 101 of the Atomic Energy Act, 42 U.S.C. § 2131, permits the Commission to assert jurisdiction over transmission lines as “important component parts” of a nuclear “utilization facility.” Furthermore, the Commission claims, NEPA itself requires federal agencies to use whatever power they possess to implement national environmental policy. A congressional directive to “consider” environmental factors is meaningless unless agencies can also act to minimize the environmental damage attributable to their licensees.
For the reasons discussed below, we find: 1) that the regulation of off-site transmission lines is within the Commission’s authority under Section 101 of the Atomic Energy Act; and 2) that nothing in the Atomic Energy Act precludes the Commission from implementing, through the issuance of conditional licenses, NEPA’s environmental mandate. We need not, and do not, decide whether NEPA is an independent source.of substantive jurisdiction.
In Public Service Company of New Hampshire v. United States Nuclear Regulatory Commission, 582 F.2d 77 (1st Cir.), cert. denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 705 (1978), the petitioners challenged a Commission order to reroute transmission lines tying the proposed Seabrook Nuclear Power Station to an existing transmission grid. The rerouting order was based on the Commission’s decision to preserve a natural area of forest and marshland. In a thoughtful and persuasive opinion, the First Circuit denied the petition for review, basing its conclusion on a finding that the Commission’s order was a proper exercise of jurisdiction under the Atomic Energy Act.
Section 101 of the Atomic Energy Act, 42 U.S.C. § 2131, authorizes the Commission to license and regulate the use of a nuclear “utilization facility.” 42 U.S.C. § 2014 defines “utilization facility” in part as “. . . (2) any important component part especially designed for such equipment or device as determined by the Commission.” (emphasis added). Thus, Congress delegated broad authority to the Commission to define, on the basis of its own experience and expertise, the phrase “component parts” of a “utilization facility.” Public Service Co., supra, at 82-83. This assertion of jurisdiction is entitled to judicial deference. Power Reactor Co. v. Electricians, 367 U.S. 396, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961).
Petitioners’ arguments that the Commission has overreached its authority consist largely of citations from the Atomic Energy Act’s legislative history and subsequent judicial comments on the statute generally. The message, apparently, is that the Commission’s primary function is to protect the public from radiological hazards. Beyond this, petitioners offer only the unsupported assertion that transmission lines are unrelated to nuclear safety. On that evidence alone, without further development of either the legal or factual bases of their argument, petitioners ask us to hold that a longstanding regulatory policy is “so contrary to the purposes of the . . . statute as to warrant intervention and correction by this court.” Public Service Co., supra, at 83.
The disputed exercise of jurisdiction is based on the Commission’s interpretation of a statute which is “virtually unique in the degree to which broad responsibility is reposed in the administrative agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives.” Siegel v. AEC, 400 F.2d 778, 783 (D.C.Cir. 1968). The Commission’s policy has been approved by at least two federal appellate courts-explicitly in Public Service Co., supra, and implicitly in Culpepper League for Environmental Protection v. NRC, 574 F.2d 633 (D.C.Cir. 1978). Finally, we read with approval the First Circuit’s discussion of the eloquence of congressional silence in matters concerning the Commission. Public Service Co., supra, at 83-84. Against the weight of this authority, we have only the petitioners’ unsupported statement that transmission lines are so irrelevant to the Atomic Energy Act that their regulation constitutes an abuse of agency discretion. We are simply unpersuaded by that argument.
We turn now to petitioners’ claim that Sections 271 and 274(k) of the Atomic Energy Act prohibit the Commission from assuming jurisdiction over off-site transmission lines. Petitioners interpret those provisions to mean that Congress has reserved exclusive control over transmission lines to state and local agencies. We disagree. The statutory language merely ensures that the authority of other agencies will continue, unimpaired by the provisions of the Atomic Energy Act. Nowhere does it suggest that the regulatory field is completely closed to the Commission. The First Circuit in Public Service Co., supra, at 84-85, analyzed the legislative history of Section 271 and concluded that the provision is merely a “garden variety nonpreemption clause.” Our study of the record here convinces us that the same description applies to Section 274(k).
Finally, in light of our previous findings, we uphold the Commission’s practice of conditioning licenses on the use of a Commission-approved transmission route. “The directive to agencies to minimize all unnecessary adverse environmental impact . [remains] except when specifically excluded by, statute or when existing law makes compliance with NEPA impossible.” Public Service Co., supra, at 81; Calvert Cliffs Coordinating Committee, supra, at 1115; Flint Ridge Development Co. v. Scenic Rivers Association, 426 U.S. 776, at 787-788, 96 S.Ct. 2430, at 2437, 2438, 49 L.Ed.2d 205 (1976). In this case, we have found no statutory conflict which might prevent the Commission from complying fully with both the Atomic Energy Act and NEPA. The Commission is empowered by its organic statute to regulate off-site transmission lines; in the exercise of that power it must pursue the objectives of the Atomic Energy Act and NEPA simultaneously. Under the Atomic Energy Act, the Commission can issue conditional licenses for regulatory purposes. There can be no objection to its use of the same means to achieve environmental ends as well. Public Service Co., supra, at 85-86.
The petition for review is dismissed.
. In 1974, licensing and related regulatory functions of the Atomic Energy Commission were transferred to the Nuclear Regulatory Commission. See Energy Reorganization Act of 1974, 42 U.S.C. § 5801 et seq. References in this opinion to “the Commission” may therefore indicate either agency.
. We are concerned throughout this opinion with “off-site” transmission lines, defined as that section of line between the plant site boundary and the first point of connection with an existing or planned high voltage system.
. See 10 C.F.R. 50.10(e)(1)(iv), 37 Fed.Reg. 5745 (March 21, 1972); Tennessee Valley Authority (Brown’s Ferry Nuclear Plant, Units 1, 2, 3) 6 A.E.C. 3 (January 22, 1973).
. Petitioners’ proposed rule reads:
The provisions of paragraphs (c) and (d) of this section shall not be deemed to prohibit any off- site construction activities including, but not limited to, construction of transmission lines. Further, paragraph (e) of this section shall not be deemed to authorize the Director of Nuclear Reactor Regulation to either authorize or prohibit any such off-site construction activities.
. In Culpepper League the court decided the substantive issue-whether the Commission erred in failing to direct an applicant to use an alternative transmission route-without questioning the Commission’s authority to order such a change.
. Section 271 reads:
Nothing in this chapter shall be construed to affect the authority or regulations of any Federal, State, or local agency with respect to the' generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission: Provided, That this section shall not be deemed to confer upon any Federal, State, or local agency any authority to regulate, control, or restrict any activities of the Commission.
42 U.S.C. § 2018.
Section 274(k) reads:
Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.
42 U.S.C. § 202 l(k).
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