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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
STATE OF SOUTH CAROLINA ex rel. Leslie E. TINDAL, Commissioner of Agriculture; Steven W. Hamm, as South Carolina Consumer Advocate; South Carolina Farm Bureau; Frank Flowers; W. Charles McGinnis; Lawrence Weathers; Suncoast Milk Producers Cooperative; Independent Dairy Farmers Association, Inc.; Tampa Independent Dairy Farmers' Association, Inc.; Upper Florida Milk Producers Association; Georgia Milk Producers, Inc.; Coble Dairy Products Cooperative, Inc.; Inter-State Milk Producers Cooperative; Dairymen, Inc.; Associated Milk Producers, Inc., Appellees, v. John R. BLOCK, Secretary of the United States Department of Agriculture, United States Department of Agriculture and Commodity Credit Corporation, Appellants. State of Minnesota, Amicus Curiae. Pennsylvania Farmers Union, Amicus Curiae. Dairy Farmer Distributors of America and Gustafson, Amicus Curiae. State of New York and Upstate Milk Cooperatives, Inc., Amicus Curiae.
Nos. 83-1426, 83-1511.
United States Court of Appeals, Fourth Circuit.
Argued July 12, 1983.
Decided Sept. 9, 1983.
Rehearing and Rehearing En Banc Denied Oct. 25, 1983.
Douglas Letter, Washington, D.C. (Leonard Schaitman, Nicholas Zeppos, Sarah Greenberg, Appellate Staff, Civ. Div., Dept, of Justice, J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., Henry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellants.
Morton Hollander, Washington, D.C., (D. Paul Alagia, Jr., Richard A. Gladstone, Sydney J. Butler, Paul S. Davidson, Barnett & Alagia, Washington, D.C., Donald M. Barnes, Salvatore A. Romano, Joyce L. Bar-too, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., T. Travis Medlock, Atty. Gen., Clifford 0. Koon, Jr., Asst. Atty. Gen., Columbia, S.C., Russell H. Putnam, Jr., Charleston, S.C., Russell W. Templeton, Columbia, S.C., Hubert E. Long, Long, Bouk-night, Nicholson & Davis, Lexington, S.C., Venable Vermont, Columbia, S.C., on brief), for appellees.
Hubert H. Humphrey, III, Atty. Gen., Jon K. Murphy, Catharine F. Haukedahl, Sp. Asst. Attys. Gen., St. Paul, Minn., on brief, for amicus curiae.
Before PHILLIPS, SPROUSE and ERVIN, Circuit Judges.
SPROUSE, Circuit Judge:
John R. Block, the Secretary of the United States Department of -Agriculture (the Secretary), appeals from the judgment of the district court enjoining him from implementing his decision to impose a 50-cent deduction on the proceeds of all milk sold commercially. The Secretary officially announced his decision by issuing a “notice of determination,” which incorporated, among other things, regulations for implementing the decision. This action was taken pursuant to a recent congressional amendment to section 201 of the Agriculture Act of 1949, which generally established the present structure of the milk price support program. The purposes of the deduction, as described by both Congress and the Secretary, are to encourage dairy farmers to reduce milk production and to offset a portion of the cost of the milk price support program. The Secretary is not required by law to impose the deduction, but is authorized by Congress to take that action in his discretion if he believes it will encourage a reduction in milk production. It is conceded that the deduction will reduce the gross income of farmers by approximately 4 percent.
The State of South Carolina, several dairy farmers and a number of intervening agricultural groups (hereinafter collectively referred to as “dairy parties”) filed this suit in district court alleging administrative law and constitutional violations, and seeking injunctive relief preventing implementation of the deduction program. Following an evidentiary hearing, the court found that the Secretary had violated the Administrative Procedure Act (APA) in its rulemaking proceedings. It then issued a preliminary injunction on June 3, 1983, enjoining further collections of the deduction and ordering the return of all monies collected pursuant to the regulation. We hold that the Secretary complied with the APA and that the legislation granting him discretion to act does not violate any provision of the Constitution, and vacate the district court’s order.
I.
Congress, in section 201 of the Agriculture Act, authorizes and directs the Secretary to support the price of milk. 7 U.S.C. § 1446. The express purposes of the dairy price support legislation are “to assure an adequate supply of pure and wholesome milk to meet current needs, reflect changes in the cost of production, and assure a level of farm income adequate to maintain productive capacity sufficient to meet anticipated future needs.” Id. § 1446(c). The Secretary is not authorized to pay direct subsidies to producers, but supports the price of milk by standing ready to purchase unlimited quantities of milk products at announced prices. Id.; 48 Fed.Reg. 11,253. The Commodity Credit Corporation (CCC), a federal corporate entity within the United States Department of Agriculture, removes excess milk from the market through purchases of surplus butter, cheese, and nonfat dry milk. This program effectively creates a floor for the prices of the products purchased and, indirectly, a floor for the price of all milk and milk products.
In recent years, milk production has greatly exceeded consumer demand. In each of the past two dairy marketing years, the CCC purchased the equivalent of 10 percent of all milk produced in the United States. See 48 Fed.Reg. at 3766. This has created massive inventories of hundreds of millions of pounds each of butter, cheese, and dry milk, with current annual storage costs of around $50 million. In 1982, the federal government spent approximately $2.3 billion on the milk price support program. Id. at 3785.
Congress, responding to the problems of milk overproduction and the increasing cost of the dairy support program, enacted the amendment in issue as part of the Omnibus Budget Reconciliation Act of 1982 (the 1982 amendment). The amendment modifies the price support statute in three respects. First, it established the price at which milk shall be supported at not less than $13.10 per hundredweight during the period October 1, 1982, until September 30, 1984, and mandated that this price level be maintained at a comparable percentage of parity for the fiscal year 1984. Second, Congress authorized the 50-cent deduction challenged in this suit. That portion of the amendment provides:
Effective for the period beginning October 1, 1982, and ending September 30, 1985, the Secretary may provide for a deduction of 50 cents per hundredweight from the proceeds of sale of all milk marketed commercially by producers to be remitted to the Commodity Credit Corporation to offset a portion of the cost of the milk price support program. Authority for requiring such deductions shall not apply for any fiscal year for which the Secretary estimates that net price support purchases of milk or the products of milk would be less than 5 billion pounds milk equivalent.
7 U.S.C. § 1446(d)(2). Third, Congress authorized the Secretary to impose an additional 50-cent deduction effective April 1, 1983, that would be refundable to producers who reduce their commercial marketings.
The Secretary, on September 22, 1982, projected that for the fiscal year beginning October 1, 1982, the net price support purchases of milk products would be 12.6 billion pounds. The Secretary then published a “notice of determination” in the federal register establishing the price support level at $13.10 for fiscal year October 1, 1982, and imposing the first 50-cent deduction beginning on December 1, 1982. He also published a proposed procedure for implementing the deduction program, and invited public'comments on “whether the dairy collection plan should be implemented in the manner set forth in this proposed rule.... ” 47 Fed.Reg. 42,112 (Sept. 24, 1982). The final rule detailing the collection plan was published on November 30, 1982, and was essentially the same as the proposed rule.
The plaintiffs in the district court challenged the Secretary’s imposition of the deduction on two grounds: that the legislation was unconstitutional and that the Secretary did not comply with the Administrative Procedure Act in issuing the determination. The district court entered its first preliminary injunction against the deduction on January 11, 1983. The court, considering only the administrative law challenges, found that the Secretary failed to comply with the Administrative Procedure Act, and that his action imposing the deduction was therefore illegal. State of South Carolina v. Block, 558 F.Supp. 1004 (D.S.C.1983) (Block I). The court specifically found, among other things, that: (1) the appellants’ determination of September 24, 1982, constituted substantive rulemaking under the Administrative Procedure Act, 5 U.S.C. § 551(4); (2) the 1982 amendment vested in the appellants the discretion to impose the 50-cent deduction, but did not require the imposition of the assessment; (3) the Secretary had acted to impose the assessment without complying with the notice and comment provisions of the Administrative Procedure Act; (4) dairy farmers would be irreparably harmed by the Secretary’s action, while the government would not suffer undue harm due to issuance of an injunction; and (5) that issuance of a preliminary injunction was in the public interest. Id.
The Secretary did not appeal the January 11 district court order. Instead, he published another notice designed to remedy the notice and comment defects found by the district court. 48 Fed.Reg. 3764 (Jan. 27, 1983). The notice included a “Summary of Preliminary Regulatory Impact Analysis” and an “Initial Regulatory Flexibility Impact Analysis.” Id. at 3765-66. The notice further invited the submission of comments, and stated that the comments submitted in response to the September 24 “notice of determination” would be considered in determining whether to impose the new deduction requirement. Id. at 3764. The Secretary allowed a 30-day period to receive comments, and then published a final rule imposing the first 50-cents per hundredweight deduction, beginning on April 16, 1983, and extending through September, 1983. 48 Fed.Reg. 11,253 (March 17, 1983). In its final determination, the Secretary responded to the public comments and provided a “Summary of Final Regulatory Impact Analysis.” Id. at 1254-55.
The plaintiffs again challenged the program contending that the statutory amendment was unconstitutional, and contending that the Secretary’s second attempt to implement the deduction also violated the Administrative Procedure Act. The district court again did not address the constitutional claims, stating that “the problems concerning administrative law are so grave that these alone resolve the case against defendants.” Block II, slip op. at 13. The court essentially found that the Secretary’s second action in promulgating the rule for the deduction was arbitrary and capricious in three critical respects: (1) the Secretary did not comply with his statutory responsibility under the Agricultural Act by failing to consider such factors as: the cost of production, returns to producers and the support prices of other commodities; (2) the Secretary had failed to consider important and relevant factors prerequisite to a reasoned decision such as: the impact on dairy farmers, the impact on the economy dependent on dairy farmers, and the regional impact of the program on dairy production; and (3) the Secretary violated the notice and comment requirements of the Administrative Procedure Act, 5 U.S.C. § 553, by failing to fairly apprise interested parties of the issues involved in the proposed program, by failing meaningfully to consider important and substantive comments on the proposed action, and by failing to explain his decision adequately. The district court issued the preliminary injunction against the Secretary involved in this appeal, but declined to grant permanent injunctive relief stating that “the matter is not yet ripe for final resolution.” Block II, slip op. at 13.
The Secretary on appeal insists that he complied with the APA. The dairy parties, however, relying on the same three objections successfully raised below, argue that: he failed to consider factors required by the Agricultural Act, that he failed to' consider other factors which, although not specified by the Agricultural Act, were critically relevant to his decision, and third, that he violated the notice and comment requirements of the Administrative Procedure Act.
The dairy parties’ contentions, however, are misplaced. Congress, in passing the controlling legislation, narrowly defined the factors which the Secretary must consider in exercising his discretion, and the record shows that the Secretary considered those factors. The record also reveals that he complied with the notice and comment requirements. His published notice clearly delineates the proposed rule and we feel he sufficiently considered the comments submitted in response to the notice.
Normally, we would not consider the constitutional arguments raised but not considered in the district court. The government contends, however, and we agree, that the record is fully developed and the constitutional questions are ripe for review. Since we feel that the answers to the constitutional questions are obvious, a remand for initial determination by the district court would be a needless burden on judicial resources. It would also impose needless delays in the final resolution of this matter, which is of crucial and immediate importance to dairy farmers and others in the industry, as well as the government. We therefore hold that the legislation in issue and the Secretary’s action pursuant to it are not violative of any provision of the constitution. We thus remand with instructions that the complaint be dismissed.
II.
The critical provision of the Agriculture Act in this litigation is section 1446, which defines the price support level for several commodities, including milk. The basic price support scheme contained in that section has been in place since 1949. Prior to the 1982 amendments, section 1446, with regard to dairy products, merely authorized the Secretary to support the price of milk through purchases of milk and milk products at announced prices. The price support level, which has been periodically adjusted by Congress, generally has been expressed as a price above a specified minimum level or as falling within a certain range based on the parity price. The Secretary determines the precise support level for a particular year. One of the dairy parties’ attacks is that the Secretary, in determining to impose the deduction vel non, must act upon the same economic considerations that he is required to consider in fixing the milk price support level. The factors which the Secretary must consider in fixing the support level are specifically contained in section 1446 and other provisions of the Agricultural Act. See, e.g., 7 U.S.C. §§ 1421(b), 1446b.
Section 1446, as amended by the Omnibus Budget Reconciliation Act of 1982, provides in pertinent part:
The Secretary is authorized and directed to make available... price support to producers for... milk... as follows:
(c) The price of milk shall be supported at such level not in excess of 90 per centum nor less than 75 per centum of the parity price therefor as the Secretary determines necessary in order to assure an adequate supply of pure and wholesome milk to meet current needs, reflect changes in the cost of production, and assure a level of farm income adequate to maintain productive capacity sufficient to meet anticipated future needs. Such price support shall be provided through the purchase of milk and products of milk.
(d) Notwithstanding any other provision of law—
(1)(A) Effective for the period beginning October 1, 1982, and ending September 30, 1984, the price of milk shall be supported at not less than $13.10 per hundredweight of milk containing 3.67 per centum milkfat.
(C) The price of milk shall be supported through the purchase of milk and the products of milk.
(2) Effective for the period beginning October 1, 1982, and ending September 30, 1985, the Secretary may provide for a deduction of 50 cents per hundredweight from the proceeds of sale of all milk marketed commercially by producers to be remitted to the Commodity Credit Corporation to offset a portion of the cost of the milk price support program. Authority for requiring such deductions shall not apply for any fiscal year for which the Secretary estimates that net price support purchases of milk or the products of milk would be less than 5 billion pounds milk equivalent. If at any time during a fiscal year the Secretary should estimate that such net price support purchases during that fiscal year would be less than 5 billion pounds, the authority for requiring such deduction shall not apply for the balance of the year.
(3)(A) Effective for the period beginning April 1, 1983, and ending September 30, 1985, the Secretary may provide for a deduction of 50 cents per hundredweight, in addition to the deduction referred to in paragraph (2), from the proceeds of sale of all milk marketed commercially by producers to be remitted to the Corporation. The deduction authorized by this subpara-graph shall be implemented only if the Secretary establishes a program whereby the funds resulting from such deductions would be refunded in the manner provided in this paragraph to producers who reduce their commercial marketings from such marketings during the base period.
To reiterate, Congress again, in this 1982 Omnibus amendment, adjusted the price support level, providing for a minimum level of $13.10 through September 30, 1984. Significantly, Congress departed from the historical approach it had pursued in this area of agricultural legislation. In the past, congressional action simply concerned fixing the price level at which milk products would be supported. In the 1982 amendment, the Secretary was given authority to require dairy farmers to deduct and remit to the Secretary fifty cents from the price they received for each hundredweight of milk. It is this discretion given the Secretary which is central to the issues in this appeal. That discretion to impose the 50-cent deduction is contingent on the Secretary’s projection of milk purchases by the CCC exceeding a specified amount. 7 U.S.C. § 1446(d)(2). Such authority was given to the Secretary for the period October 1, 1982, through September 30, 1985. Id. Congress never before under the dairy support program had authorized the Secretary to reduce the income of dairy farmers or to affect the price of milk except by fixing the price support level.
A.
The dairy parties concede that Congress, by granting the Secretary authority to impose the 50-cent deduction, departed from the historical structure of the Agriculture Act. They nevertheless insist that all of the historical provisions of the Act apply to and control the Secretary’s discretion in imposing the deduction. Specifically, they contend, and the district court held, that sections 1421(a), 1446(c), and 1446b describe “factors” which the Secretary must consider in exercising his discretion to impose the deduction vel non. Section 1446(c) is quoted above. Section 1421(b) describes factors which the Secretary must consider in determining price support. It provides in part:
(b) Except as otherwise provided in this Act, the amounts, terms, and conditions of price support operations and the extent to which such operations are carried, shall be determined or approved by the Secretary. The following factors shall be taken into consideration in determining,... in the case of any commodity for which price support is mandatory [such as milk], the level of support in excess of the minimum level prescribed for such commodity: (1) the supply of the commodity in relation to the demand therefor, (2) the price levels at which other commodities are being supported,... (3) the availability of funds, (4) the perishability of the commodity, (5) the importance of the commodity to agriculture and the national economy, (6) the ability to dispose of stocks acquired through a price-support operation, (7) the need for offsetting temporary losses of export markets, (8) the ability and willingness of producers to keep supplies in line with demand....
Section 1446b provides:
The production and use of abundant supplies of high quality milk and dairy products are essential to the health and general welfare of the Nation; a dependable domestic source of supply of these foods in the form of high grade dairy herds and modern, sanitary dairy equipment is important to the national defense; and an economically sound dairy industry affects beneficially the economy of the country as a whole. It is the policy of Congress to assume a stabilized annual production of adequate supplies of milk and dairy products; to promote the increased use of these essential foods; to improve the domestic source of supply of milk and butterfat by encouraging dairy farmers to develop efficient production units consisting of high-grade, disease-free cattle and modern sanitary equipment; and to stabilize the economy of dairy farmers at a level which will provide a fair return for their labor and investment when compared with the cost of things that farmers buy.
Contrary to the dairy parties’ contentions, however, it seems clear that what Congress intended in enacting section 1446(d)(2) was a self-contained, temporary change in the dairy support program in response to the immediate problems of increasing overproduction and the burgeoning cost of the price support program. Congress prefaced section 1446(d) with the phrase “[notwithstanding any other provision of law.” It then articulated in section 1446(d)(2) specific factors the Secretary must consider in deciding to impose the first 50-cent deduction: the overproduction of milk; the cost of the milk price support program; the expected amount of CCC purchases; and the relevant time periods. The legislative history shows that Congress considered the effects on the economy of imposing the 50-cent deduction, the government budgetary problems and the individualized hardships it would impose on dairy farmers. After considering these factors in hearings and debates, it provided the Secretary with a narrowly-defined discretionary authority to implement the deduction. The statutory parameters of his discretion were set forth in section 1446(d)(2), which provides that the Secretary has such authority for only three fiscal years, October 1, 1982 through September 30, 1985, that such authority applies only if the Secretary estimates that the CCC will purchase in excess of 5 billion pounds of milk products, and the proceeds must be “remitted to the CCC to offset a portion of the cost of the milk price support program.” There is no indication that Congress intended for the Secretary to consider factors contained in other provisions of the Agriculture Act.
The substance of all the statutory provisions which the dairy parties would have the Secretary apply in exercising his discretion to impose the deduction was in place long before the 1982 amendment became law. Section 1421(b) specifically states that it applies to the Secretary’s actions under the milk program only for purposes of “determining... the level of support in excess of the minimum level prescribed for [milk].” Section 1446(c), in listing the factors to be considered by the Secretary, specifically states that they are to be considered in setting the price support level for milk. Section 1446b is entitled “Promotion of increased use of dairy products,” a concern of little relevance to the purposes of section 1446(d)(2). Indeed, most, if not all, of the factors listed in the above provisions were considered by Congress in enacting the deduction portion of the 1982 amendment. See Schweiker v. Gray Panthers, 453 U.S. 34, 50 n. 22, 101 S.Ct. 2633, 2643 n. 22, 69 L.Ed.2d 460 (1981).
We conclude that the statutory factors reflecting congressional policy contained in 7 U.S.C. §§ 1421(b), 1446(c) and 1446b apply only to the Secretary’s responsibility in fixing the price support level, not to his responsibility in determining whether to impose the deduction. On the contrary, Congress narrowly defined the factors he should consider in exercising this latter discretion: whether surplus milk production would exceed five billion pounds and whether this deduction program would lower the government milk support costs. The record reflects that the Secretary considered the statutory requirements imposed upon him by Congress. If statutory requirements are satisfied, a court cannot set aside an administrative decision simply because it “is unhappy with the result reached.” Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978).
The Secretary projected milk production and CCC purchases with and without imposition of the 50-cent deduction for fiscal year 1983 as shown in his “Summary of Final Regulatory Impact Analysis” as follows:
With price support at $13.10 per hundredweight, production is projected to be 138.6 billion pounds for fiscal year 1983 if there is no deduction program, up 3.6 billion pounds from fiscal year 1982. Relatively low feed prices, resulting from record crop production, will keep milk-feed price relationships favorable for increased production. Commercial consumption is projected to increase 1.9 billion pounds to 124.0 billion pounds, milk equivalent, because of relatively stable retail prices and increased population. It is estimated that CCC removals in fiscal year 1983 will be 14.7 billion pounds, up about 0.9 billion pounds or about 8.5 percent more than a year earlier. Despite the upward trend in consumption, purchases would continue to exceed dispositions and CCC stocks would continue to build — a condition that has existed since October 1979.
Even with implementation of a 50 cents per hundredweight deduction on April 16, 1983, milk production in fiscal year 1983 is likely to increase from the fiscal year 1982 level by 3.2 billion pounds. Implementation of a $1.00 per hundredweight deduction would result in production increasing by 2.8 billion pounds. Neither of the two deduction programs would have a great downward effect upon milk production this fiscal year because they would not become effective until the season of highest milk production has begun.
Net price support purchases during fiscal year 1983 are projected to be 14.3 billion pounds, at a cost of $2,375 million if a 50-cent per hundredweight deduction is imposed on April 16, 1983 and 13.9 billion pounds, at a cost of $2,314 million if the deduction is $1.00 per hundredweight. Net outlays before deductions, are projected to be $2,433 million with a 50-cent per hundredweight deduction and $2,372 million with a $1.00 per hundredweight deduction. During the period April 16, 1983, through September 30, 1983, a 50-cent per hundredweight deduction will likely total $324 million and $1.00 per hundredweight deduction will total $646 million. Therefore, net CCC outlays for the fiscal year, after deductions, are projected to be $2,109 million assuming a 50-cent deduction and $1,726 million assuming a $1.00 deduction. These figures compare with an estimated purchase cost of $2,282 million and a net outlay of $2,438 million for fiscal year 1982, and an estimated purchase cost of $2,438 and a net outlay of $2,496 million for fiscal year 1983 if there is no deduction.
48 Fed.Reg. at 11,254-55. The Secretary also determined that the 50-cent deduction would help to reduce the overproduction of milk, as shown in his “Initial Regulatory Flexibility Impact Analysis” as follows:
Failure to implement any deduction would fail to accomplish CCC’s stated objectives and would result in a continuation of the present situation where milk production exceeds commercial consumption and Commodity Credit Corporation purchases large amounts of dairy products under the milk price support program at great expense.
Neither of the two deduction programs will have a great downward effect upon milk production during this fiscal year because they would not become effective until the season of highest milk productions (the flush) has begun. The effect upon milk production will begin to be felt after the flush in the summer months as pastures begin to deteriorate, and later in the fall when cows are taken off pasture and moved into barns.
48 Fed.Reg. at 3766.
Moreover, although the Secretary was required to consider only the three statutory factors, he in fact ranged over a broader spectrum of considerations in deciding to exercise his discretion to impose the 50-cent deduction. The Secretary’s impact analysis is illustrative where he states:
The proposal will assure an adequate supply of milk and dairy products and will encourage efficient production units consisting of high-grade, disease-free cattle and modern sanitary equipment. It also will assure dairy farmers as a whole of a fair return for their labor and investment while assuring an adequate supply of pure and wholesome milk to meet current needs. The proposal will assure a level of farm income adequate to maintain productive capacity sufficient to meet anticipated future needs. The proposal also reflects the recent reduction in the cost of feed and increased efficiency in production. Some marginal operators may not be able to profit under the proposal but the statute does not guarantee each and every dairy farmer a profit while requiring the accumulation of huge CCC stocks of surplus dairy products.
48 Fed.Reg. at 3765-66. See 7 U.S.C. § 1446b.
We conclude, therefore, that the Secretary did not act in an arbitrary and capricious manner by failing to consider additional factors contained in other provisions of the Agriculture Act in implementing the 50-cent deduction. He not only considered the specific factors Congress legislatively required of him, but also considered other general policies underlying the national economy and the price support program.
B.
The district court held that the Secretary was required by the Administrative Procedure Act not only to consider the legislative factors previously listed, but other general factors nowhere explicitly mentioned in the controlling legislation. 5 U.S.C. § 706(2). It specifically found, among other things, that the Secretary improperly failed to consider in determining to impose the deduction: (1) the impact on dairy farmers; (2) the impact on the economy dependent on dairy farmers; (3) the regional impact on the dairy industry; and (4) the impact on milk production.
The district court fell into the same error in making these findings as it did in concluding that additional sections of the Agriculture Act must be considered. Again, Congress specifically, and we think emphatically, granted the Secretary discretion to decide whether to impose the deduction. It directed him to project whether CCC purchases would exceed 5 billion pounds and whether the deduction program would lower the cost to the government of the support program. As already noted, the Secretary properly considered these factors. Courts are not free to add substantive or procedural hurdles for agencies to overcome if Congress has not established such requirements. See Baltimore Gas & Elec. Co. v. NRDC, — U.S. —, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). Having met those requirements, it cannot be said that the Secretary’s actions were arbitrary and capricious for failure to consider the factors which a court might feel are appropriate but which were either considered and rejected by Congress, or simply not included by Congress as factors which the administrative agency must consider.
C.
The finding that the Secretary failed to comply with the notice and comment requirements of the APA, 5 U.S.C. § 553, was also in error. The district court held first that the information made available to the public was critically deficient in that it did not reveal the information animating the defendant’s proposal to a sufficient degree to allow effective public comment; second, that the Secretary did not adequately respond to comments; and third, that he failed adequately to explain his decision. We consider these district court findings in that sequential order.
First, section 553(b)(3) provides that a “notice” shall include “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” The notice requirement is to fairly appraise interested parties of the issues involved in the rulemaking proceedings. Spartan Radiocasting Co. v. FCC, 619 F.2d 314, 321-22 (4th Cir.1980); Consolidation Coal Co. v. Costle, 604 F.2d 239, 248 (4th Cir.1979). Notice is sufficient if it affords interested parties a reasonable opportunity to participate in the rulemaking process. Forester v. Consumer Product Safety Comm’n, 559 F.2d 774, 787-88 (D.C.Cir.1977).
We believe the dairy parties and the interested public were fairly apprised of the “subjects and issues involved” regarding the Secretary’s proposal to implement the 50-cent deduction. 5 U.S.C. § 553(b)(3). The proposal explained the background of the proposed rule, described the milk price support program, and provided a summary of the proposed rule. It further discussed the expected effect of the regulation, the reasons for the action, the objectives and legal basis for the proposed rule, and a number of other considerations. The deduction program was designed by Congress itself following hearings and debate. Leaders in the dairy industry followed those congressional proceedings closely. As to them, the notice did not newly introduce the problem.
Second, the Secretary adequately responded to comments he had received after publishing the notice. The purpose of allowing comments is to permit an exchange of views, information, and criticism between interested persons and the agency. See Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). There is no requirement for the Secretary to discuss every fact or opinion contained in the public comments. General Telephone Co. v. Unit ed States, 449 F.2d 846, 862 (5th Cir.1971); Hiatt Grain & Feed, Inc. v. Bergland, 446 F.Supp. 457, 484 (D.Kan.1978), aff’d, 602 F.2d 929 (10th Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1019, 62 L.Ed.2d 755 (1980). Instead, the Secretary is obligated to identify and comment on only the relevant and significant issues raised during the proceeding. Home Box Office, 567 F.2d at 35 n. 58; Community Nutrition Institute v. Bergland, 493 F.Supp. 488, 492-93 (D.C.1980).
The Secretary enumerated all of the comments he had received with regard to the proposed deduction rules, and stated that “all comments bearing on the determination have been considered.” 48 Fed.Reg. at 11,-254. He responded specifically to a number of comments, such as ones stating that the deduction would not reduce milk production, that it would not balance supply and demand, that large numbers of small farmers would be put out of business, and other comments suggesting increased donations of dairy products, a reduction in the support price, termination of the milk price support program, and an exemption from the deduction for producer-handlers. Id. Most of the comments concerned alternatives to the deduction program outside the scope of the Secretary’s authority, or concerned factors and issues irrelevant to implementation of the deduction or which had already been considered by Congress in enacting the deduction amendment. See Schweiker v. Gray Panthers, 453 U.S. 34, 50 n. 22, 101 S.Ct. 2633, 2643 n. 22, 69 L.Ed.2d 460 (1981). Having responded to the comments concerning the major factors relevant to a decision to implement the deduction and a number of others, the Secretary did not violate the comment requirement contained in 5 U.S.C. § 553(c).
Third, the district court ruled that the Secretary’s explanation of the final rule did not enable the court to discern the agency’s reasoning, and thus frustrated judicial review. 5 U.S.C. § 553(c). We feel that the Secretary adequately explained his decision to impose the first 50-cent deduction.
The APA does not require an exhaustive explanation of an administrator’s reasoning for adopting a rule. Required is “a concise general statement [of the regulation’s] basis and purpose.” Appalachian Power Co. v. EPA, 579 F.2d 846, 854 (4th Cir.1978), quoting United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 758, 92 S.Ct. 1941, 1951, 32 L.Ed.2d 453 (1972). There is no obligation to make references in the agency explanation “to all the specific issues raised in comments.” Appalachian Power Co., 579 F.2d at 854, quoting Kennecott Copper Corp. v. EPA, 462 F.2d 846, 850 (D.C.Cir.1972); Consumers Union of
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_usc2
|
28
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 21. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES of America, Plaintiff-Appellee, v. David Ronald CHANDLER, a/k/a Ronnie Chandler, Defendant-Appellant.
Nos. 91-7466, 91-7577.
United States Court of Appeals, Eleventh Circuit.
July 19, 1993.
As Modified Sept. 30, 1993.
Rehearing and Suggestion for Rehearing En Banc Denied Sept. 30, 1993.
L. Drew Redden, Birmingham, AL, Redden, Mills & Clark, Paul M. Dodyk, Cravath, Swaine & Moore, New York City, for defendant-appellant.
Frank W. Donaldson, U.S. Atty., Harwell G. Davis, Asst. U.S. Atty., Birmingham, AL, Robert J. Erickson, Deputy Chief, Appellate Section, Criminal Div., U.S. Dept, of Justice, Washington, DC, for plaintiff-appellee.
Before FAY, EDMONDSON and BIRCH, Circuit Judges.
BIRCH, Circuit Judge:
This appeal challenges the first death sentence imposed under the Anti-Drug Abuse Act of 1988, 21 U.S.C. § 848(e) et seq. The defendant Ronald David Chandler appeals both his conviction and sentence on the capital charge as well as his convictions and sentences on other related counts. We VACATE Chandler’s conviction and sentence for conspiracy. We AFFIRM all other convictions and sentences, including Chandler’s death sentence.
I. BACKGROUND
On May 8, 1990, Charles Ray Jarrell Sr. and Marlin Shuler drove to Snow’s Lake in Piedmont, Alabama. At the lake, Jarrell and Shuler engaged in target practice with two pistols that Jarrell had brought along. Jar-rell turned his gun at Shuler and then shot and killed him.
Later that year the State of Alabama indicted Jarrell, Jarrell’s son Billy Joe, and Chandler for the murder of Shuler. These indictments were ultimately dismissed, but the state prosecutor handling those charges was appointed Special Assistant United States Attorney and assisted in this prosecution.
The United States issued a superseding indictment on January 9, 1991. Count One of the indictment charged Chandler, Jarrell and 14 other individuals with conspiracy to possess with intent to distribute and with distribution of over 1,000 kilograms of marijuana and 1,000 marijuana plants, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Chandler was also indicted on eight other counts: Count Two, engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848(a); Count Three, murder while engaged in and working in furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e); Counts Four and Five, aiding and abetting the use or carrying of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and Counts Six, Seven, Eight, and Nine, money laundering in violation of 18 U.S.C. § 1956.
On January 17, 1991, Jarrell entered into a plea agreement with the government. Jar-rell pleaded guilty to the conspiracy charge in Count One of the indictment and agreed to testify on behalf of the government at Chandler’s trial. In exchange, Jarrell received immunity from prosecution for Shuler’s murder from the State of Alabama and the United States.
On January 30, 1991, the government served notice, pursuant to 21 U.S.C. § 848(h)(1), of its intention to seek the death penalty against Chandler for the murder of Shuler under Count Three. The notice stated that the government would attempt to prove the following aggravating factors as the basis for the death penalty: (1) Chandler did intentionally kill Shuler; (2) Chandler did intentionally engage in conduct intending that Shuler be killed; (3) Chandler procured the murder of Shuler by payment and promise of payment of money; and (4) Chandler committed the murder after substantial planning and premeditation.
Chandler’s trial was severed from the other co-conspirators’ trials and commenced on March 19, 1991. The government’s evidence consisted of over 40 witnesses, including a number of indicted and unindicted co-eon-spirators. Their testimony described the following events.
During the years of 1988 to 1990, Chandler developed an extensive marijuana growing and distribution operation that was centered in northeast Alabama, but operated in both Alabama and neighboring states. Chandler developed his supply of marijuana through the local farming of thousands of marijuana plants in northeast Alabama and the importation of marijuana from as far away as Texas. Chandler then used an extensive distribution network to generate substantial profits from his illegal activities. The profits were used in part to fund the growth of his operation and in part to purchase land and property.
The size of Chandler’s operation was significant. In 1989 and again in 1990, Chandler helped prepare and cultivate over 100 plots of land dedicated solely to marijuana plants. In 1989, Chandler harvested most of the several thousand marijuana plants that were originally planted. In 1990, the harvest was disturbed by government raids that seized over 500 marijuana plants from Chandler’s plots. In overseeing this operation, Chandler was not only actively involved in the cultivation of the plants, but he also hired several people to guard the plots during the growing season.
Chandler also arranged for supplies of marijuana from other locations, including a major source in Texas. In a four month period in 1990, Chandler engaged Jarrell as a courier to import approximately 245 pounds of marijuana from Texas in four deliveries. A fifth delivery was thwarted when a different courier was arrested with $106,000. Chandler also obtained supplies of marijuana in neighboring states.
Chandler developed a distribution system of couriers and dealers to facilitate his sale of marijuana. On occasion, Chandler gave his couriers firearms to provide protection for his marijuana. It was a perceived threat to this dealer network that caused Chandler to resort to murder.
One of Chandler’s dealers was Donna Shu-ler, the half-sister of both Chandler’s wife and Jarrell. On March 2, 1990, state law enforcement officers executed a search warrant on Donna Shuler’s home in Piedmont, Alabama, and uncovered several bags of marijuana totaling approximately one kilogram. The search warrant was based upon the affidavit of the local police chief. In the affidavit, the police chief stated that Shuler, the former husband of Donna Shuler, had complained on at least three occasions that Donna Shuler was dealing drugs from her home. Following the search, Donna Shuler was charged with drug trafficking.
Donna Shuler’s attorney, Bill Broome, waived the formal preliminary hearing in exchange for the opportunity to look through the local district attorney’s file, including the police report. On April 27, 1990, Broome made copies of the search warrant and the police chiefs affidavit and supplied copies of them to Donna Shuler. A subsequent search of Chandler’s residence on September 21, 1990, found a slip of paper which contained the words “Bill Broome” and “copy of police report.”
Following the search of Donna Shuler’s apartment, Chandler approached another of his dealers, Raymond Pointer, and asked him if he “was interested in making a little bit bigger money.” RVII-75. Chandler told Pointer that he would pay him $5,000 to kill Shuler because Shuler “had gone and busted somebody in Piedmont.” RVII-77. Chandler then opened a briefcase containing packets of hundred dollar bills and a nine millimeter pistol. Chandler also advised Pointer that he would pay him even more money if Pointer would kill the Piedmont Chief of Police. Pointer, however, declined Chandler’s offer.
On the morning of May 8, 1990, Chandler arrived at Jarrell’s house. Also present at the house was Shuler. Upon seeing Shuler, Chandler warned Jarrell, “He’s going to cause me and you a whole lot of trouble,” and “You need to go on and take care of him and I still got that $500.00.” RVII-10. Jarrell understood Chandler to be referring to a conversation Jarrell had with Chandler in January, 1990. In that conversation, which occurred before the search of Donna Shuler’s home, Chandler announced that Jarrell should eliminate Shuler due to all of the problems that Shuler had caused for Jarrell and his family, declaring that he would pay Jarrell $500 if Jarrell accomplished the task. At that time, Jarrell thought that Chandler was joking.
Chandler then left Jarrell’s house and Jar-rell and Shuler spent the morning drinking heavily. The two then drove to Snow’s Lake where they engaged in target practice with two guns Jarrell had brought: a.380 pistol owned by Jarrell and a nine millimeter pistol that Chandler had placed in Jarrell’s ear the previous evening. Jarrell then turned the nine millimeter pistol on Shuler, shot twice and killed him. Jarrell drove directly to Chandler’s home and advised Chandler that he had killed Shuler. Jarrell then returned to Snow’s Lake accompanied by Chandler, carried Shuler’s body to the other side of the mountain bordering Snow’s Lake, and buried the body near an abandoned moonshine still. Jarrell asked for the $500, but Chandler did not pay him.
At approximately the same time that Shu-ler was murdered, Chandler was also attempting to protect his operation from individuals who were stealing his marijuana crop. Chandler suspected that two individuals, Patrick Burrows and Jeffrey MeFry, were stealing his marijuana. Chandler warned several people that he would kill MeFry and Burrows if they continued to steal marijuana. Chandler later announced to one of his dealers that Burrows was dead and that MeFry would be next if McFry did not quit stealing Chandler’s marijuana. Neither Burrows nor McFry were seen after September 1990.
The defense argued that while Chandler may have been involved in individual marijuana transactions, he was not involved in a conspiracy with the 16 other individuals as charged in the superseding indictment. Further, under no interpretation of the evidence was Chandler the head of a continuing criminal enterprise.
The defense also introduced evidence that there was a history of animosity between Jarrell and Shuler that gave Jarrell an independent reason to kill Shuler. Donna Shu-ler, the half-sister of Chandler’s wife and Jarrell, was once married to Shuler. The couple lived for a time with Donna’s mother. During their marriage Shuler repeatedly abused his wife and his mother-in-law. Jar-rell and his sons frequently came to their defense and would argue and fight with Shu-ler. In 1989, during an argument between Shuler and Jarrell, Jarrell told Shuler that he was going to kill him, pointed a pistol at Shuler’s head, and pulled the trigger. Although the gun was loaded, it failed to fire.
Defense counsel also attacked the putative gaps in the government’s case. Chandler’s counsel emphasized that a number of the government’s key witnesses had entered into plea agreements in which testimony was exchanged for a recommendation of a lesser sentence.
On April 2, 1991, the jury found Chandler guilty on all nine counts. As provided under 21 U.S.C. § 848(i)(l)(A), the district court on the next day conducted a death penalty sentencing hearing before the same jury. The government resubmitted all of the evidence used at the guilt phase that was relevant to the death of Shuler or to the presence of aggravating or mitigating factors. The government and Chandler stipulated that Chandler had no prior convictions on any felony or drug charge and that state murder charges against Jarrell and Jarrell’s son in connection with the Shuler murder had been dismissed and that neither the United States nor Alabama would prosecute either one for murder. Chandler’s mother and wife testified for the defense.
Following detailed instructions from the district court, a unanimous jury found that the government had established two aggravating factors: (1) Chandler intentionally caused the death of Shuler and (2) Chandler procured the murder by promising the payment of money. The jury unanimously recommended that Chandler be sentenced to death. On May 14, 1991, the district court sentenced Chandler to life imprisonment on Counts One and Two, two consecutive five year sentences on Counts Four and Five, and six years of imprisonment on Counts Six, Seven, Eight and Nine. Based on the jury recommendation, the district court sentenced Chandler to death, on Count Three as mandated by 21 U.S.C. § 848(0-
Chandler moved for a new trial as to both phases of his trial. These motions assigned numerous errors to both the guilt and sentencing phases of the trial. Some arguments renewed previous attacks and others were made for the first time. The district court denied the motions, but stayed enforcement of the capital sentence pending appeal. Chandler filed two appeals to this court. The first challenged the capital sentence under Count Three. The second contested his conviction on Count Three and his convictions and sentences on the non-capital counts. • We consolidated the two appeals under 21 U.S.C. § 848(q)(l).
II. THE STATUTORY SCHEME
A. Overview Of Section 848
The Anti-Drug Abuse Act of 1988 establishes as a capital offense the intentional killing of a person in connection with the commission of a continuing criminal enterprise. The Act details procedures to be followed before a defendant may be sentenced to death.
Initially, the government must serve notice “a reasonable time before trial” of its intent to seek the death penalty. 21 U.S.C. § 848(h)(1). If a defendant is found guilty of violating Section 848(e)(1)(A), a separate sentencing hearing must be conducted, generally before the same jury that determined guilt. 21 U.S.C. § 848(i)(l)(A). The purpose of the hearing is to permit consideration of any aggravating and mitigating factors relevant to whether the defendant should be sentenced to death. 21 U.S.C. § 848(j). The information presented at sentencing need not conform to the Federal Rules of Evidence, so long as the district court is convinced that its pi’obative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading to the jury. Id.
The process by which a jury is to consider sentencing factors is specific. The government must prove beyond a reasonable doubt and to the unanimous satisfaction of the jury at least two of the aggravating factors expressly set forth in the statute. 21 U.S.C. § 848(j), (k). It must advise the defendant a reasonable time before trial of those aggravating factors it intends to prove. 21 U.S.C. § 848(h)(1). One of these must be from among the four listed in Section 848(n)(l). The other must be from among those listed in Section 848(n)(2)-(12). Absent a finding of these aggravating factors, a jury cannot impose the death penalty. 21 U.S.C. § 848(k).
If a jury makes the required findings of aggravating factors, it then considers any mitigating factors established by the defendant. 21 U.S.C. § 848(k), (m). Mitigating factors need only be established by a preponderance of the evidence, and any juror persuaded of a mitigating factor may consider it in reaching a sentencing decision; unanimity as to what factors are mitigating is not required. 21 U.S.C. § 848(j), (k).
A jury that finds the required aggravating factors must consider whether these factors so outweigh any mitigating factors as to justify a sentence of death. 21 U.S.C. § 848(k). Absent any mitigating factors, a jury must still unanimously find that the aggravating factors are themselves sufficient to justify a sentence of death. Id. Invidious factors, such as race or sex, cannot influence a jury’s recommendation of the death penalty. Each juror must sign a certificate attesting that neither the defendant’s nor the victim’s “race, color, religious beliefs, national origin, or sex” played any part in the deliberations. 21 U.S.C. § 848(o)(l).
Although a jury cannot vote for the death penalty absent the required findings just detailed, a jury is never required to impose a death sentence even if it finds sufficient grounds to do so under the applicable law. Indeed, a court must specifically so instruct the jury. 21 U.S.C. § 848(k). Although the statute denominates a jury’s finding in favor of the death penalty a “recommendation,” it is determinative, for upon such a “recommendation” the trial court “shall sentence the defendant to death.” 21 U.S.C. § 848(i).
Appellate review of a death sentence is expressly provided by the statute. 21 U.S.C. § 848(q)(l). Such appeal may be consolidated with a challenge to the judgment of conviction, and the case is to be given priority on the appellate docket. Id.
B. Standard Of Review
Section 848 contains two provisions that address our review of death sentences imposed under Section 848(e). Section 848(q)(2) states:
On review of the sentence, the court of appeals shall consider the record, the evidence submitted during trial, the information submitted during the sentencing hearing, the procedures employed in the sentencing hearing, and the special findings returned under this section.
Section 848(q)(3) provides:
The court shall affirm the sentence if it determines that—
(A) the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor; and
(B) the information supports the special finding of the existence of every aggravating factor upon which the sentence was based, together with, or the failure to find, any mitigating factors as set forth or allowed in this section.
There is nothing in these sections altering our ordinary standards of review. Instead, these sections serve to emphasize the serious nature of capital cases and the importance of careful review.
III. DISCUSSION
A. Challenges To The Death Sentence
1. Jury power to recommend a sentence other than death
Section 848(k) provides that, if the jury finds certain aggravating factors, the jury must then weigh the aggravating factors against any mitigating factors to determine whether to recommend “that a sentence of death shall be imposed rather than a sentence of life imprisonment without possibility of release or some other lesser sentence.” At Chandler’s sentencing, the district court instructed the jury that, in the event that it did not recommend a sentence of death, it should not be concerned with the question of what sentence he might receive. The district court also stated that the judge alone would decide Chandler’s sentence if the jury did not recommend death.
Chandler contends that the district court violated Section 848(k) as well as the Fifth and Eighth Amendments by withholding from the jury the authority to impose a sentence other than death. However, at a pre-sentencing hearing, Chandler’s counsel asserted that “I don’t think they [the jurors] make a recommendation of a sentence if they don’t recommend death.” XIV-40. The proposed jury instructions submitted by Chandler advised that, if the jury did not recommend a death sentence, the responsibility for imposition of a non-death sentence rested with the district court. Because Chandler both argued for and submitted jury instructions stating that the district court alone was responsible for sentencing Chandler if the jury did not recommend death, Chandler invited the alleged error and cannot now, on appeal, complain that the instruction was erroneous. Leverett v. Spears, 877 F.2d 921, 924 (11th Cir.1989).
Had Chandler not invited the instruction, the district court properly construed Section 848(k). When the language of a statute is clear, the language controls any interpretation of the statute absent a legislative intent to the contrary. United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); Harper v. Better Business Servs., Inc., 961 F.2d 1561, 1563 (11th Cir.1992). We must look to the language and design of the statute as a whole in interpreting the language at issue. McCarthy v. Bronson, — U.S. -, -, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991).
The language of Section 848(k) is not perfectly clear, and the legislative history of the Anti-Drug Abuse Act of 1988 consists of only a few debates on the Senate floor. Nevertheless, Section 848(k) can be confidently interpreted when it is read in the context of the statute as a whole. Several provisions of Section 848 suggest that Chandler’s interpretation is flawed. Section 848(i) provides:
Upon the recommendation that the sentence of death be imposed, the court shall sentence the defendant to death. Otherwise the court shall impose a sentence, other than death, authorized by law.
The second sentence of this section instructs that the district court determines the sentence if the jury does not recommend death. Similarly, Section 848(p) provides:
If a person is convicted for an offense under subsection (e) of this section and the court does not impose the penalty of death, the court may impose a sentence of life imprisonment without the possibility of parole.
Thus, the statute grants the district court the discretion to sentence a defendant to life without parole if a death sentence is not recommended. These sections preclude an interpretation of Section 848(k) that gives the jury the authority to impose a non-death sentence. Correspondingly, the responsibility for- sentencing has historically resided with the trial court. In the absence of clear language in a statute to lodge the sentencing responsibility with the jury, we are reluctant to interpret the statute in a strained manner to reach that result. Hence, we find that Section 848 grants the district court the power to sentence the defendant where the jury does not recommend death.
Chandler next insists that our interpretation of Section 848(k) violates the Fifth and Eighth Amendments. Chandler relies on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). In Beck, the Court held that a jury in a capital ease must be permitted to consider a verdict of guilty on a lesser included non-capital offense where the evidence would support such a verdict. The jury will thus not be put in a position of choosing between guilt on a capital offense and acquittal. Chandler argues that the jury at his sentencing was put in a similar position.
However, Beck is not directly applicable in capital sentencing hearings. California v. Ramos, 463 U.S. 992, 1007-09, 103 S.Ct. 3446, 3457, 77 L.Ed.2d 1171 (1983). In Chandler’s case, prior to sentencing the jury found Chandler guilty of murder in connection with a continuing criminal enterprise. Therefore, the jury was not choosing between guilt of a capital crime and acquittal. It was choosing between a penalty of death and some other sentence yet to be determined by the trial judge.
Chandler also invokes Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). In Hicks, the Court held that due process requires that a jury must be informed of all sentences that the statute allows it to impose when exercising sentencing power. Id. at 346, 100 S.Ct. at 2229. In Hicks, the jury was vested with the power to determine the defendant’s sentence, capital or otherwise. In this case, Hicks provides no guidance. The issue before us is whether Section 848 gives the jury the power to recommend a sentence other than death. Unless that question is answered in the affirmative, Hicks provides no guidance.
The Court has ruled that there is no single correct way to structure a death sentencing procedure. Morgan v. Illinois, — U.S. -, -, 112 S.Ct. 2222, 2228, 119 L.Ed.2d 492 (1992); Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984). Indeed, there is also no constitutional requirement that juries be allowed to participate in capital sentencing. Id. at 459, 104 S.Ct. at 3161-62. Accordingly, there is nothing unconstitutional with the procedure Congress established in Section 848. The jury has the sole power to recommend a sentence of death. If the jury does not recommend a death sentence, the trial judge has the responsibility to impose a sentence other than death. Hicks is inapplicable to Chandler’s case because the jury, in this ease, was instructed on the full range of its sentencing power; that is, the power to recommend a death sentence.
2. Jury should have been informed of other sentences
Chandler contends that even if the jury did not have the power to recommend a sentence other than death, under Section 848(k) and applicable precedent, the jury should have been informed of the possible sentences Chandler would face if the jury did not recommend death. We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party. United States v. Myers, 972 F.2d 1566, 1572 (11th Cir.1992), cert. denied, — U.S. - —, 113 S.Ct. 1813, 123 L.Ed.2d 445 (1993). The instructions must be viewed as a whole in the context of the trial record. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Peek v. Kemp, 784 F.2d 1479, 1492 n. 13 (11th Cir.1986), cert. denied, 479 U.S. 1047, 107 S.Ct. 912, 93 L.Ed.2d 862 (1987). Further, an error occurs only when there is a reasonable likelihood that the jury applied the instruction in an improper manner. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990); see Estelle v. McGuire, — U.S.-,-, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991).
Initially, Chandler asserts that Section 848(k) requires that the jury be informed that he would face some other sentence, including the possibility of a life sentence without parole, if the jury did not recommend the death penalty. Section 848(k) instructs that after weighing the aggravating and mitigating factors and determining that the aggravating factors sufficiently outweigh the mitigating factors, the jury may then exercise its option to
recommend that a sentence of death shall be imposed rather than a sentence of life imprisonment without possibility of release or some other lesser sentence.
At sentencing the district court instructed the jury:
In deciding what recommendation to make, you are not to be concerned with the question of what sentence the defendant might receive in the event you determine not to recommend a death sentence. That is a matter for me to decide in the event you conclude that a sentence of death should not be recommended.
RXV-85. The district court also instructed:
If you do not make such a recommendation, the court is required by law to impose a sentence other than death, which sentence is to be determined by the court alone.
RXV-87. Chandler’s argument, in effect, is that the district court’s instruction was inadequate because it did not inform the jury that the “sentence other than death” included the possibility of life without parole.
We find that the district court’s instructions adequately informed the jury under Section 848(k). The statutory scheme created by Section 848 provides that the jury alone has the power to recommend a sentence of death. If the jury does not make such a recommendation, the district court sentences the defendant. Nothing in Section 848 requires the jury to be informed of what sentence the defendant might receive in the absence of death. The district court’s instructions were proper.
Chandler also suggests that applicable precedent, mandating that a defendant be allowed to introduce evidence relating to mitigating factors, requires that the jury be informed of the possibility that Chandler would receive a life sentence without parole if death was not recommended. The Supreme Court has defined mitigating factors as “any aspect of a defendant’s character or record and any of the circumstances of the offense.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978); see Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1670-71, 90 L.Ed.2d 1 (1986). The range of possible sentences that Chandler might receive in the event the jury did not recommend death does not fall within this definition. Accordingly, the district court was not required to inform the jury of the possible sentences Chandler might face.
3. Return of mitigating findings
Chandler urges us to rule that the district court should have required the jury to return written findings of mitigating factors it did or did not find to exist. At no time, however, did Chandler request that the jury be instructed to return written findings of mitigating factors or object to the lack of such an instruction. Chandler did submit proposed jury charges that instructed the jury that they should find two mitigating factors: (1) that Chandler lacked a criminal record, and (2) that an equally culpable defendant would not receive the death penalty. These requested instructions did not adequately bring to the district court’s attention the issue now presented on appeal. Thus, we review for plain error. Fed.R.Crim.P. 52(b).
The finding of plain error is a three step process: (1) there must be an error, (2) the error must be plain, i.e. clear or obvious, and (3) the error must affect substantial rights. United States v. Olano, — U.S.-,--, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). In most cases, the third prong of this test is met only when the defendant demonstrates that the error affected the outcome of the proceedings before the district court. Id. at --, 113 S.Ct. at 1778. If, however, the error affects the basic protections of a criminal trial without which a criminal trial cannot reliably serve its function, an effect on the outcome will be presumed. Id.; see Arizona v. Fulminante, 499 U.S. 279,-, 111 S.Ct. 1246, 1264-65, 113 L.Ed.2d 302 (1991) (distinguishing between trial type errors and errors which undermine the entire trial). If the defendant satisfies all three prongs, then we have the discretionary power to correct an error which seriously affects the fairness, integrity or public reputation of judicial proceedings. Olano, — U.S. at-, 113 S.Ct. at 1778-79.
We first determine whether an error occurred. We disagree with Chandler’s interpretation of Section 848 that the jury is required to return written findings of mitigating factors that the jury has either found to exist or found not to exist. Instead we interpret Section 848 as providing the jury with the option of returning written findings of mitigating factors. Because the district court’s instructions and verdict form foreclosed the jury’s exercise of this option, the district court committed error.
Section 848(k) is entitled “Return of Findings.” It provides that the jury “shall return special findings identifying any aggravating factors set forth in subsection (n) of this section, found to exist.” The section also states:
A finding with respect to a mitigating factor may be made by one or more of the members of the jury, and any member of the jury who finds' the existence of a mitigating factor may consider such a factor established for purposes of this subsection, regardless of the number of jurors who concur that the factor has been established.
The statute mentions special findings only in relation to aggravating factors. Also, the permissive language concerning the return of written mitigating factors, “may be made,” contrasts with the mandatory language.concerning the return of written aggravating findings, “shall.” The jury.is required to return aggravating findings and is permitted to return mitigating findings. Therefore, we find that Section 848 requires that the jury be instructed that it has the option to return written findings of mitigating factors if it so chooses, but that it does not require the return of such findings.
Section 848(q) does not require a different result. This section states that on review of a death sentence, “the court of appeals shall consider... the special findings.returned under this section.” 21 U.S.C. § 848(q)(2). The section also instructs, in pertinent part, that we shall affirm a death sentence if
the information supports the special finding of the existence of every aggravating factor upon which the sentence was based, together with, or the failure to.find, any mitigating factors as set forth or allowed in this section.
21 U.S.C. § 848(q)(3)(B). Neither of these subsections mandate the written findings of mitigating factors. They require only that we review any findings which are returned to ensure that the information presented during sentencing supports those findings. We hold that Section 848(k) requires that the jury be given the option to return written findings of mitigating factors. Section 848(q)(3) requires that if the jury exercises its option, we must review those findings.
This interpretation comports with the law as it stood at the time Congress drafted the Anti-Drug Abuse Act of 1988. The finding of mitigating circumstances is individualized; a juror is free to find a mitigating factor even if no other juror agrees with that finding. See Mills v. Maryland, 486 U.S. 367, 373-74, 108 S.Ct. 1860, 1865, 100 L.Ed.2d 384 (1988). Congress may well have determined that forcing jurors to write down mitigating factors would discourage a lone juror from finding mitigating circumstances that the rest of the jury.had rejected or disparaged. More significantly, by not requiring a juror to inform his or her fellow jurors of the mitigating factors that will be used in that juror’s weighing calculus, the individualized determination of both mitigating factors and the appropriateness of a death sentence is protected.
The district court in this case did not inform the jury that it had the option to return written findings of mitigating factors and the verdict form did not contain space for the optional findings. This was error. Moreover, the error was plain. The statute, as we interpret it in this opinion, requires that the jury be given an option to return mitigating findings.
Accordingly, we must determine whether the error affected Chandler’s substantial rights. We note initially that this error does not undermine the basic protections of a criminal trial without which a criminal trial cannot reliably serve its function, but instead is a trial type error. Chandler must therefore demonstrate that the error affected the outcome of the proceedings before the district court. Chandler argues that he was prejudiced because an appellate court on review cannot determine whether the jury found two mitigating factors which Chandler contends were beyond dispute: (1) that Chandler had no criminal record; and (2) that Jarrell was an equally culpable person who would not receive the death penalty.
We are persuaded that the lack of written mitigating findings did not affect the outcome of Chandler’s sentencing hearing. The government and Chandler stipulated that Chandler had no prior conviction on any felony or drug charge and that Jarrell would not receive the death penalty. These stipulations were presented at sentencing to the jury, and the jury was informed that they were stipulations. Moreover, the jury was properly instructed on how to find mitigating factors and the role of mitigating factors in their decision making process. The jury is presumed to follow the instructions they are given. See Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987). Thus, Chandler has not demonstrated that the lack of written mitigating findings affected the outcome of his case.
In conclusion, the district court erred by not allowing the jury the option to return written findings of mitigating factors. However, this error did not affect the outcome of the sentencing hearing and was, therefore, not plain error.
4. Jury unanimity at sentencing
Section 848(k) provides that a recommendation of death may be returned only by the jury’s unanimous vote. Section 848(0 provides:
Upon the recommendation that the sentence of death be imposed, the court shall sentence the defendant to death. Otherwise the court shall impose a sentence, other than death, authorized by law.
When read in conjunction, these subsections provide that in the event the jury cannot unanimously recommend a death sentence, the district court must sentence the defendant to some non-death sentence.
At sentencing, the district court instructed the jury that:,
[i]n order to bring back a verdict recommending the punishment of death, all twelve of you must vote in favor of recommending the death penalty. In other words, a verdict recommending a sentence of death must be unanimous.
RXV-87. The jury was
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 21. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_authoritydecision
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
COX v. LOUISIANA.
No. 24.
Argued October 21, 1964.
Decided January 18, 1965.
Carl.Rachlin argued the cause for appellant. With him on the brief were Robert Collins, Nils Douglas and Floyd McKissick.
Ralph L. Roy argued the cause for appellee. With him on the brief was Jack P. F. Gremillion, Attorney-General of Louisiana.
Mr. Justice Goldberg
delivered the opinion of the Court.
Appellant, the Reverend Mr. B. Elton Cox, the leader of a civil rights demonstration, was arrested and charged with four offenses under Louisiana law — criminal conspiracy, disturbing the peace, obstructing public passages, and picketing before a courthouse. In a consolidated trial before a judge without a jury, and on the same set of facts, he. was acquitted of criminal conspiracy but convicted of the other three offenses. He was sentenced to serve four months in jail and pay a $200 fine for disturbing the peace, to serve five months in jail and pay a $500 fine for obstructing public passages, and to serve one year in jail and pay a $5,000 fine for picketing before a courthouse. The sentences were cumulative.
In accordance with Louisiana procedure, the Louisiana Supreme Court reviewed the “disturbing the peace” and “obstructing public passages” convictions on certiorari, and the “courthouse picketing” conviction on appeal. The Louisiana court, in two judgments, affirmed all three convictions. 244 La. 1087, 156 So. 2d 448; 245 La. 303, 158 So. 2d 172. Appellant filed two separate appeals to this Court from these judgments contending that the three statutes under which he was convicted were unconstitutional on their face and as applied. We noted probable jurisdiction of both appeals, 377 U. S. 921. This case, No. 24, involves the convictions for disturbing the peace and obstructing public passages, and No. 49 concerns the conviction for picketing before a courthouse.
I.
The Facts.
On December 14, 1961, 23 students from Southern University, a Negro college, were arrested in downtown Baton Rouge, ■ Louisiana, for picketing stores that maintained segregated lunch counters. This picketing, urging a boycott of those stores, was part of a general protest movement against racial segregation, directed by the local chapter of the Congress of Racial Equality, a civil rights organization. The appellant, an ordained Congregational minister, the Reverend Mr. B. Elton Cox, a Field Secretary of CORE, was an advisor to this movement. On the evening of December 14, appellant and Ronnie Moore, student president of the local CORE. chapter, spoke at a mass meeting at the college. The students resolved to demonstrate the next day in front of the courthouse-in protest of segregation and the arrest and imprisonment of the picketers who were being held in the parish jail located on the upper floor of the courthouse building.
The next morning about 2,000 students left the campus, which was located approximately five miles from downtown Baton Rouge. Most of them had to walk into the city since the drivers of their busses were arrested. Moore was also arrested at the entrance to the campus while parked in a car equipped with a loudspeaker, and charged with violation of an antinoise statute. Because Moore was immediately taken off to jail and the vice president of the CORE chapter was already in jail for picketing, Cox felt it his duty to take over the demonstration and see that it was carried out as planned. He quickly drove to the city "to pick up this leadership and keep things orderly.”
When Cox arrived, 1,500 of the 2,000 students were assembling at the site of the old State Capitol building,. two and one-half blocks from the courthouse. Cox walked up and down cautioning the students to keep to one. side of the sidewalk while getting ready for their. march to the courthouse. The students circled the block in a file two or three abreast occupying about half of the • sidewalk. The police had learned of the proposed demonstration the night before from news media and other sources. Captain Font of the City Police Department and Chief Kling of the Sheriff’s office, two high-ranking subordinate officials, approached the group and spoke to Cox at the northeast corner of the capitol grounds. Cox identified himself as the group’s leader, and, according to Font and Kling, he explained that the students were demonstrating to protest “the illegal arrest of some of their people who were being held in jail.” The version of Cox and his witnesses throughout was that they came not “to protest just the arrest but... [also] to protest the evil of discrimination.” Kling asked Cox to disband the group and “take them back from whence they came.” Cox did not acquiesce in this request but told the officers that they would march by the courthouse, say prayers, sing hymns, and conduct a peaceful program of protest. The officer repeated his request to disband, and Cox again refused. Kling and Font then returned to their car in order to report by radio to the Sheriff and Chief of Police who were in the immediate vicinity; while this was going on, the students, led by Cox, began their walk toward the courthouse.
They walked in an orderly and peaceful file, two or three abreast, one block east, stopping on the way for a red traffic light. In the center of this block they were joined by another group of students. The augmented group now totaling about 2,000 turned the corner and proceeded south, coming to a halt in the next block opposite the courthouse.
As Cox, still at the head of the group, approached the vicinity of the courthouse, he was stopped by Captain Font and Inspector Trigg and brought to Police Chief Wingate White, who was standing in the middle of St. Louis Street. The Chief then inquired as to the pur-' pose of the demonstration. Cox, reading from a prepared paper, outlined his program to White, stating that it would include a singing of the Star Spangled Banner and a “freedom song,” recitation of the Lord’s Prayer and the Pledge of Allegiance, and a short speech. White testified that he told Cox that “he.must confine” the demonstration “to the west side of the street.” White added, “This, of course, was not — I didn’t mean it in the import that I was giving him any permission to do it, but I was presented with a situation that was accomplished, and I had to make a decision.” Cox testified that the officials agreed to permit the meeting. James Erwin, news director of radio station WIBR, a witness for the State, was present and overheard the conversation. He testified that “My understanding was that they would be allowed to demonstrate if they stayed-on the west side of the street and stayed within the recognized time,” and that this was “agreed to” by White.
The students were then directed by Cox to the west sidewalk, across the street from the courthouse, 101 feet from its steps. They were lined up on this sidewalk about five deep and spread almost the entire length of the block. The group did not obstruct the street. It was close to noon and, being lunch time, a small crowd of 100 to 300 curious white people, mostly courthouse personnel, gathered on the east sidewalk and courthouse steps, about 100 feet from the demonstrators. Seventy-five to eighty policemen, including city and state patrolmen and members of the Sheriff’s staff, as well as members of the fire department and a fire truck were stationed in the street between the two groups. Rain fell throughout the demonstration.
Several of the students took from beneath their coats picket signs similar to those which had been used the day before. These signs bore legends such as “Don’t buy discrimination for Christmas,” “Sacrifice for Christ, don’t buy,” and named stores which were proclaimed “unfair.” They then sang “God Bless America,” pledged allegiance to the flag, prayed briefly, and sang one or two hymns, including “We Shall 'Overcome.” The 23 students, who were locked in jail cells in the courthouse building out of the sight of the demonstrators, responded by themselves singing; this in turn was greeted with cheers and applause by the demonstrators. Appellant gave a speech, described by a State’s witness as follows:
“He said that in effect that it was a protest against, the illegal arrest of some of their members and that other people were allowed to picket... and he said that they were not going to commit any violence, that if anyone spit on them, they would not spit back on the person that didit.”
Cox then said:
“All right. It’s lunch time. Let’s go eat. There are twelve stores we are protesting. A number of these stores have twenty counters; they accept your money from nineteen. They won’t accept it from the twentieth counter. This is an act of racial discrimination". These stores are open to the public. You are members of the public. We pay taxes to the Federal Government.and you who live here pay taxes to the State.”
In apparent reaction to these last remarks, there was what state witnesses described as “muttering” and “grumbling” by the white onlookers.
The Sheriff, deeming, as he testified, Cox’s appeal to the students to sit in at the lunch counters to be “inflam-matoryj” then took a power microphone and said, “Now, you have been allowed to. demonstrate. Up until now your demonstration has been more or less peaceful, but what you are doing now is a direct violation of the law, a disturbance of the peace, and it has got to be broken up immediately.” The testimony as to what then happened is disputed. Some of the State’s witnesses testified that Cox said, “don’t move”; others stated that he made, a “gesture of defiance.” It is clear from the record, however, that Cox and the demonstrators did not then and there break up the demonstration. Two of the Sheriff’s deputies immediately started across the street and told the group, “You have heard what the Sheriff said, now, do what he said.” A state witness testified that they put their hands on the shoulders of some of the students “as though to shove them away.”
Almost immediately thereafter — within a time estimated variously at two to five minutes — one of the policemen exploded a tear gas shell at the crowd. This was followed by several other shells. The demonstrators quickly dispersed, running back towards the State Capitol and the downtown area; Cox tried to calm them as they ran and was himself one of the last to leave.
No Negroes participating in the demonstration were arrested on that day. The only person then arrested was a young white map, not a part of the demonstration, who was arrested “because he was causing a disturbance.” The next day appellant was arrested and charged with the four offenses above described.
II.
The Breach of the Peace Conviction.
Appellant was convicted of violating a Louisiana “disturbing the peace” statute, which provides:
“Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of thé peace may be occasioned thereby... crowds or congregates with others... in or upon... a public street or public highway, or upon a public sidewalk, or any other public place or building... and who fails or refuses to disperse and move on.... when ordered so to do by any law enforcement officer of any municipality, or parish, in which, such act or acts are committed, or by any law enforcement officer of the state of Louisiana, or any other authorized person... shall be guilty of disturbing the peace.” La. Rev. Stat. § 14:103.i (Cum. Supp. 1962).
It is clear to us that on the facts of this case, which are strikingly similar to those present in Edwards v. South Carolina, 372 U. S. 229, and Fields v. South Carolina, 375 U. S. 44, Louisiana infringed appellant’s rights of free speech and free assembly by convicting him under this'statute. As in Edwards, we do not find it necessary to pass upon appellant’s contention that there was a complete absence of evidence so that his conviction deprived him of liberty without due process of law. Cf. Thompson v. Louisville, 362 U. S. 199. We hold that Louisiana, may not constitutionally punish appellant under this statute for engaging in the type of conduct which this record reveals, and also that the statute as authoritatively interpreted by the Louisiana Supreme Court is unconstitutionally broad in scope.
The Louisiana courts have held that appellant’s' conduct constituted a breach of the peace under state law, and, as in Edwards, “we may accept their decision as binding upon us to that extent,” Edwards v. South Carolina, supra, at 235; but our independent examination of the record, which we are required to make, shows no conduct which the State had a right to prohibit as a breach of the peace.
Appellant led a group of young college students who wished “to protest segregation” and discrimination against Negroes and the arrest of 23 fellow students, They assembled peaceably at the State Capitol building. and marched to the courthouse where they sang, prayed and listened to a speech. A reading of the record reveals agreement on the part of the State’s witnesses that Cox had the demonstration “very well controlled,” and until the end of Cox’s speech, the group was perfectly “orderly.” Sheriff Clemmons testified that the crowd’s activities were not “objectionable” before that time. They became objectionable, according to the Sheriff himself,.when Cox, concluding his speech, urged the students to go uptown and sit in at lunch counters. The Sheriff testified that the sole aspect of the program to which he objected was “[t]he inflammatory manner in which he [Cox] addressed that crowd and told them to go on up town, go to four places on the protest list, sit down and if they don’t feed you, sit there for one hour.” Yet this part of Cox’s speech obviously did not deprive the demonstration of its protected character under the Constitution as free speech and assembly. See Edwards v. South Carolina, supra; Cantwell v. Connecticut, 310 U. S. 296; Thornhill v. Alabama, 310 U. S. 88; Garner v. Louisiana, 368 U. S. 157, 185 (concurring opinion of Mr. Justice Harlan).
The State argues, however, that while the demonstrators started oút to be orderly, the loud cheering arid clapping by the students in response to the,singing from the jail converted the peaceful assembly into a riotous one. The record, however, does not support this assertion. It is true that the students, in response to the singing of their fellows who were in custody, cheered and applauded. However, the meeting was an outdoor meeting and a key state witness testified that while the singing was loud, it was not disorderly. There is, moreover, no indication that the mood of the students was ever hostile, aggressive, or unfriendly. Our conclusion that the entire meeting from the beginning until its dispérsal by tear gas was orderly and not riotous is confirmed by a film of the events taken by a television news photographer, which was offered in evidence as a state exhibit. We have viewed the film, and it reveals that the students, though they undoubtedly cheered and clapped, were well-behaved throughout. My Brother Black, concurring in this opinion and dissenting in No. 49, post, agrees “that the record does, not show boisterous or violent conduct or indecent language on the part of the... students. Post, at 583. The singing and cheering do not seem to us to differ significantly from the constitutionally protected activity of the demonstrators in Edwards, who loudly sang “while stamping their feet and clapping their hands.” Edwards v. South Carolina, supra, at 233.
Our conclusion that the record does not support the' contention that the students’ cheering, clapping ¿nd singing constituted a breach of the peace is confirmed by the faQt that these were not relied on as a basis for conviction by the trial judge, who, rather, stated as his reason for convicting Cox of disturbing the peace that “[i]t must be recognized to be inherently dangerous and a breach of the peace to bring 1,500 people, colored people, down in the predominantly white business district in the City of Baton Rouge and congregate across the street from the courthouse and sing songs as described to me by tlie defendant as the CORE national anthem carrying lines such as ‘black and white together' and to urge those 1,500 people to descend upon our lunch counters and sit there until they are served. That has to be an inherent breach of the peace, and our statute 14:103.1 has made it so.”
Finally, the State contends that the conviction should be sustained because of fear expressed by some of the state witnesses that “violence was about to erupt” because of the demonstration. It is virtually undisputed, however, that the students themselves were not violent and threatened no violence. The fear of violence seems to have been based upon the reaction of the group of white citizens looking on from across the street. One state witness testified that “he felt the situation was getting out of hand” as on the courthouse side of St. Louis Street “were small knots or groups of white citizens who were muttering words, who seemed a little bit agitated.” A police officer stated that the reaction of the white crowd was not violent, but “was rumblings.” Others felt the atmosphere became “tense” because of “mutterings,” “grumbling,” and “jeering” from the white group. There is no indication, however, that any member of the white group threatened violence. And this small crowd estimated at between 100 and 300 was separated from the students by “seventy-five to eighty” armed policemen, including “every available shift of the City Police,” the “Sheriff's Office in full complement,” and “additional help from the. State Police,” along with a “fire truck and the Fire Department.” As Inspector Trigg testified, they could have handled the crowd.
This situation, like that in Edwards, is “a far cry from the situation in Feiner v. New York, 340 U. S. 315.” See Edwards v. South Carolina, supra, at 236. Nor is there any evidence here of “fighting words.” See Chaplinsky v. New Hampshire, 315 U. S. 568. Here again, as in Edwards, this evidence “showed no more than that the opinions which... [the students] were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection.” Edwards v. South Carolina, supra, at 237. Conceding this was so, the “compelling answer... is that constitutional rights may not be denied simply because of hostility to their assertion or exercise.” Watson v. Memphis, 373 U. S. 526, 535.
There is an additional reason why this conviction cannot be sustained. The statute at issue in this case, as authoritatively interpreted by the Louisiana Supreme Court, is unconstitutionally vague in its overly broad scope. The statutory crime consists of two elements: (1) congregating with others “with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned,” and (2) a refusal to move on after having been ordered to do so by a law enforcement officer. While the second part of this offense is narrow and specific, the first element is not. The Louisiana Supreme Court in this case defined the term “breach of the peace” as “to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.” 244 La., at 1105, 156 So. 2d, at 455. In Edwards, defendants had been convicted of a common-law crime similarly defined by the South Carolina Supreme Court. Both definitions would allow persons to be punished merely for peacefully expressing unpopular views. Yet, a “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech... is.... protected against censorship or punishment.... There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.”. Terminiello v. Chicago, 337 U. S. 1, 4-5. In Terminiello convictions were not allowed to stand because the trial judge charged that speech of the defendants could be punished as a breach of the peace “ ‘if' it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.’ ” Id., at 3. The Louisiana statute, as interpreted by the Louisiana court, is at least as likely to allow conviction for innocent speech as was the charge of the trial judge in Terminiello. Therefore, as in Terminiello and Edwards the conviction under this statute must be reversed as the statute is unconstitutional in that it sweeps within its broad scope activities that are constitutionally protected free speech and assembly. Maintenance of the opportunity for free political discussion is a basic tenet of our constitutional democracy. As Chief Justice Hughes stated in Stromberg v. California, 283 U. S. 359, 369: “A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.”
For all these reasons we hold that appellant’s freedoms of speech and assembly, secured to him by the First Amendment, as applied to the States by the Fourteenth Amendment, were denied by his conviction for disturbing the peace. The conviction on this charge cannot stand.
III.
The Obstructing Public Passages Conviction.
We now turn to the issue of the validity of appellant’s conviction for violating the Louisiana statute, La. Rev. Stat. § 14:100.1 (Cum. Supp. 1962), which provides:
“Obstructing Public Passages
“No person shall wilfully obstruct the free, convenient and normal use of any public sidewalk, street, highway, bridge, alley, road, or other passageway, or the entrance, corridor or passage of any public building, structure, watercraft or ferry, by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein.
“Providing however nothing herein contained shall apply to a bona fide legitimate labor organization or to any of its legal activities such as picketing, lawful assembly or concerted activity in the interest of its members for the purpose of accomplishing or securing more favorable wage standards, hours of employment and working conditions.”
Appellant was convicted under this statute, not for leading the march to the vicinity of the courthouse, which the Louisiana Supreme Court stated to have been “orderly,” 244 La., at 1096, 156 So. 2d, at 451, but for leading the meeting. on the sidewalk across the street from the courthouse, Id., at 1094, 1106-1107, 156 So. 2d, at 451, 455. In.upholding appellant’s conviction under this statute, the Louisiana Supreme Court thus construed the statute so as to apply to public assemblies which do not have as their specific purpose the obstruction of traffic. There is no doubt from the record in this case that this far sidewalk was- obstructed, and thus, as so construed, 'appellant violated the statute.
Appellant,- however-, contends that, as so construed and applied in this case, the statute is an unconstitutional infringement on freedom of speech and assembly. This contention on the facts here presented raises an issue with which this Court has dealt in many decisions, that is, the right of a State or municipality to regulate the use of city streets and other facilities to assure the safety and convenience of the people in their use and the concomitant right of the people of free speech and assembly. See Lovell v. Griffin, 303 U. S. 444; Hague v. CIO, 307 U. S. 496; Schneider v. State, 308 U. S. 147; Thornhill v. Alabama, 310 U. S. 88; Cantwell v. Connecticut, 310 U. S. 296; Cox v. New Hampshire, 312 U. S. 569; Largent v. Texas, 318 U. S. 418; Saia v. New York, 334 U. S. 558; Kovacs v. Cooper, 336 U. S. 77; Niemotko v. Maryland, 340 U. S. 268; Kunz v. New York, 340 U. S. 290; Poulos v. New Hampshire, 345 U. S. 395.
From these decisions certain ‘dear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental, authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations. See Lovell v. Griffin, supra, at 451; Cox v. New Hampshire, supra, at 574; Schneider v. State, supra, at 160-161; Cantwell v. Connecticut, supra, at 306-307; Giboney v. Empire Storage & Ice Co., 336 U. S. 490; Poulos v. New Hampshire, supra, at 405-408; see also, Edwards v. South Carolina, supra, at 236.
We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct.such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech. See the discussion and cases cited in No. 49, post, at 563. We reaffirm the statement of the Court in Giboney v. Empire Storage & Ice Co., supra, at 502, that “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”
We have no occasion in this case to consider the constitutionality of the uniform, consistent, and nondiscriminatory application of a statute forbidding all access to streets and other' public facilities for parades and meetings. Although the statute here involved on its face precludes all street assemblies and parades, it has not been so applied and enforced by the Baton Rouge authorities. City officials who testified for the State clearly indicated that certain meetings and parades are permitted in Baton Rouge, even though they have the effect of obstructing traffic, provided prior approval is obtained. This was confirmed in oral argument before this Court by counsel for the State. He stated that parades and meetings are permitted, based on “arrangements... made with officials.” The statute itself provides no standards for the determination of local officials as to which assemblies to permit or which to prohibit. Nor are there any administrative regulations on this subject which have been called to our attention. From all the evidence before us it appears that the authorities in Baton Rouge permit or prohibit parades or street meetings in their completely uncontrolled discretion.
The situation is thus the same as if the statute itself expressly provided that there could only be peaceful parades or demonstrations in the unbridled discretion of the local officials. The pervasive restraint on freedom of discussion by the practice of the authorities under the statute is not any less effective than a statute expressly permitting such selective enforcement. A long line of cases in this Court makes it clear that a State or municipality cannot “require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval, with a discretion in the police to say some ideas may, while others may not, be... disseminate [d]....” Schneider v. State, supra, at 164. See Lovell v. Griffin, supra; Hague v. CIO, supra; Largent v. Texas, supra; Saia v. New York, supra; Niemotko v. Maryland, supra; Kunz v. New York, supra.
This Court has recognized that the lodging of such broad discretion in a public official allows him to determine which expressions of view will be permitted and which will not. This thus sanctions a device for the suppression of the communication of ideas and permits the official to act as a censor. See Saia v. New York, supra, at 562. Also inherent in such a system allowing^ parades or meetings only with the prior permission of an official is the obvious danger to the right of a person or group not to be denied equal protection of the laws. See Niemotko v. Maryland, supra, at 272, 284; cf. Yick Wo v. Hopkins, 118 U. S. 356. It is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious discrimination among persons or groups either by use of a statute providing a system of broad discretionary licensing power or, g,s in this case, the equivalent of such a system by selective enforcement of an extremely broad prohibitory statute.
It is, of course, undisputed that appropriate, limited discretion, under properly drawn statutes or ordinances, concerning the time, place, duration, or manner of use of the streets for public assemblies may be vested in administrative officials, provided that such limited discretion is “exercised with 'uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination’... [and with] a'systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways....’” Cox v. New Hampshire, supra, at 576. See Poulos v. New Hampshire, supra.
But here it is clear that the practice in Baton Rouge allowing unfettered discretion in local officials in the regulation of the use of the streets for peaceful parades and meetings is an unwarranted abridgment of appellant’s freedom of speech and assembly secured to him by the First Amendment, as applied to the States by the Fourteenth Amendment. It follows, therefore, that appellant’s conviction for violating the statute as so applied and enforced must be reversed.
For the reasons discussed above the judgment of the Supreme Court of Louisiana is reversed.
Reversed.
[For concurring opinion of Mr. Justice Black, see post, p. 575.]
[For concurring opinion of Mr. Justice Clark, see post, p. 585.]
[For opinion of Mr. Justice White, concurring in part and dissenting in part, see post, p. 591.]
Estimates of the crowd’s size varied' from 1,500 to 3,800. Two thousand seems to have been the consensus and was the figure accepted by the Louisiana Supreme Court, 244 La., at 1095, 156 So. 2d, at 451.
There were varying versions in the record as to the time the demonstration would take. The State’s version was that Cox asked for seven minutes. Cox’s version was that he said his speech would take seven minutes but that the whole program would take between 17 and 25 minutes.
The “permission” granted the students to demonstrate is discussed at greater length in No. 49, where its legal effect is considered.
A few days before,- Cox had participated with some of the demonstrators in a “direct non-violent clinic” sponsored by CORE and held at St. Mark’s Church.
Sheriff Clemmons had no objection to this part of the speech. He testified on cross-examination as follows:
“Q. Did you have any objection to that part of his talk?
“A. None whatever. If he would have done what he said, there would have been no trouble at all. The whole thing would- have been over and done with.
“Q. Did you have any objection to them being assembled on that side of the street while he was making that speech, sir?
“A. I had no objection to it.”
Sheriff Clemmons objected strongly to these words. He testified on cross-examination as follows:
“Q. Now, what part of his speech became objectionable to him being -assembled there?
“A. The inflammatory manner in which he addressed that, crowd and told them to go on up town, go to four places on the protest list, sit down and if they don’t feed you,, sit there for one hour.”
The exact sequence of these events is unclear from the record, being described differently not only by the State and the defense, but also by the state witnesses themselves. It seems reasonably certain, however, that the response to the singing from the jail, the end of Cox’s speech, and the “muttering” and “grumbling” of the white onlookers all took place at approximately the same time.
Because a claim of constitutionally protected right is involved, it “remains our duty in a case' such as this to make an independent examination of the whole record.” Edwards v. South Carolina, 372 U. S. 229, 235; Blackburn v. Alabama, 361 U. S. 199, 205, n. 5; Pennekamp v. Florida, 328 U. S. 331, 335; Fiske v. Kansas, 274 U. S. 380, 385-386. In the area of First Amendment freedoms as well as areas involving other constitutionally protected rights, “we cannot avoid our responsibilities.by permitting ourselves to be ‘completely bound by state court determination of any issue essential to decision of a claim of federal right, else fedéral law could be frustrated by distorted fact finding.’ ” Haynes v. Washington, 373 U. S. 503, 515-516; Stein v. New York, 346 U. S. 156, 181.
The cheering and shouting were described differently by different witnesses, but the most extravagant descriptions were the following: “a jumbled roar like people cheering at, a football game,” “loud cheering and spontaneous clapping and screaming and a great hulla-' baloo,” “a great outburst,” a cheer of “conquest... much wilder than a football game,”
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
sc_authoritydecision
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
No. 18.
No. 37.
No. 121.
No. 329.
No. 395.
No. 403.
No. 56,
Misc.
No. 177,
Misc.
No. 212,
Misc.
No. 273,
Misc.
Friedberg v. United States, Holland et ux. v. United States, Moore v. Mead's Fine Bread Co., Thomas Rigging Co. v. National Labor Relations Board, Hall v. First National Bank of Atlanta, Executor, Eistrat v. Brush Industrial Lumber Co. et al., Mezo v. Illinois, Dixon v. Illinois, Fudge v. California, Suttles et al. v. Davis, Commandant, U. S. Disciplinary Barracks,
ante, p. 142;
ante, p. 121;
ante, p. 115;
ante, p. 871;
ante, p. 896;
ante, p. 896;
ante, p. 899;
ante, p. 901;
ante, p. 901; and
ante, p. 903. Petitions for rehearing denied.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_altdisp
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D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
CHARLES J. ARNDT, INC., a corporation, Plaintiff-Appellant, v. CITY OF BIRMINGHAM, a municipal corporation, et al., Defendants-Appellees.
No. 83-7605.
United States Court of Appeals, Eleventh Circuit.
Dec. 17, 1984.
Engel, Hairston, Moses & Johanson, Griffin Sikes, Jr., Charles R. Johanson, III, Birmingham, Ala., for plaintiff-appellant.
Alton B. Parker, Jr., Spain, Gillon, Riley, Tate & Etheredge, J. Stuart Wallace, Birmingham, Ala., for defendants-appellees City of Birmingham, et al.
Carolyn Nelson, Metropolitan Properties, Inc., Birmingham, Ala., for Metropolitan Properties, Inc. and GB Corp.
Thomas Reuben Bell, Sylacauga, Ala., for Metropolitan Properties, Inc.
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.
ALBERT J. HENDERSON, Circuit Judge:
The appellant, Charles J. Arndt, Inc. (“Arndt”), appeals from the orders of the United States District Court for the Northern District of Alabama dismissing Arndt’s federal and state law causes of action and denying its motions to alter or amend the court’s judgment and to amend the complaint. Arndt alleged that the actions of the defendants constituted a taking of its property without due process of law in violation of the fifth and fourteenth amendments to the Constitution of the United States and 42 U.S.C. § 1983, and deprived it of substantive due process. Finding there was no taking of Arndt’s property in a constitutional sense, we affirm the district court.
On September 8, 1981, the Birmingham, Alabama City Council adopted Resolution No. 1119-81 in furtherance of a previously adopted urban renewal plan for downtown Birmingham. Resolution No. 1119-81 declared Block 60 a blighted area and set out specific findings to support this declaration. The resolution provided that the City of Birmingham (“City”) should acquire or cause to be acquired All of the property in Block 60 at a reasonable and fair market price for the subsequent redevelopment of the area. The resolution authorized the City to contract with a developer to acquire the property on behalf of the City. Parcels which the developer was unable to obtain by purchase were to be acquired by the City through the exercise of its power of eminent domain.
Pursuant to the resolution’s terms, the City entered into an agreement with Metropolitan Properties, Inc. (“Metropolitan”) on September 30, 1981, in which Metropolitan agreed to use its best efforts to purchase all of the property interests located in Block 60. Metropolitan thereupon began negotiations with Arndt, the owner of a leasehold interest in real property located in Block 60 on which Arndt operated a men’s retail clothing and tailor shop. The City stepped in to conduct the final phases of the negotiations after Arndt complained of an impasse in the talks with Metropolitan. On October 20, 1982, Arndt granted the City or its assigns an option to terminate the Arndt leasehold interest in the Block 60 property. On the same date, the City assigned the option to Metropolitan. The option was exercised on December 30, 1982, the term of the option having been extended by mutual agreement of the parties.
Arndt filed this complaint against the City, the mayor, various city officials including city council members, Metropolitan, and GB Corporation in the United States District Court for the Northern District of Alabama on April 29, 1983. The complaint charged that the actions of the various defendants in declaring Block 60 a blighted area, in failing to negotiate in good faith or to commence condemnation proceedings, and in coercing Arndt into granting the City the option to terminate its leasehold constituted a taking of Arndt’s property without due process in violation of the fifth and fourteenth amendments and 42 U.S.C. § 1983. The complaint also alleged a state law breach of contract cause of action arising out of the failure of the City, Metropolitan or GB Corporation to pay the contract price after exercising the option.
Both the City and corporate defendants filed motions, denominated as “Motion to Dismiss,” with the district court on May 23, 1983 and June 20, 1983. The motions were premised, inter alia, on the plaintiff’s failure to state a claim upon which relief could be granted. On June 28, 1983, the district court directed that the motion filed by the City defendants be treated as a motion for summary judgment.
The district court entered its order dismissing the plaintiff’s claims on September 1, 1983. The court found that Arndt’s claim that the City Council’s declaration of blight constituted a taking was foreclosed by the United States Supreme Court’s decision in Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240 (1939). Arndt’s assertion that the defendants failed to negotiate in good faith or to commence timely condemnation proceedings was seen as inconsistent with the claim that it was coerced into granting the option to terminate the lease. In the court’s view, Arndt’s admission that it entered into an option agreement with the City confirmed that the property was not taken without due process of law. Finally, the court declined to exercise pendent jurisdiction over the state breach of contract claim. At the time of the district court’s order, Arndt continued to operate its business at the Block 60 location.
Arndt subsequently filed a motion to alter or amend the court’s judgment pursuant to Rule 59 of the Federal Rules of Civil Procedure and a motion for leave to amend its complaint. The amended complaint essentially restated the allegations contained in the first complaint and stressed Arndt’s claim of a denial of substantive due process. In an order entered October 17, 1983, the district court denied both motions. In its memorandum of opinion accompanying the order, the court rejected Arndt’s arguments of denial of substantive due process and offensive collateral estop-pel. Arndt appeals both the orders of September 1, 1983 and October 17, 1983.
I.
In the briefs submitted to this court, the parties have engaged in a spirited battle over the district court’s procedural disposition of the case in its September 1,1983 order. Arndt insists that the district court treated the defendants’ motions as motions to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). It relies on language in the district court’s orders referring to the defendants’ “motions to dismiss” for support. Counsel for the City defendants contends, however, that its motion was converted into a motion for summary judgment, while counsel for the corporate defendants maintains that the district court did not dispose of its motion under Fed.R.Civ.P. 56. Therefore, our first task is to determine the nature of the district court’s treatment of the motions styled “Motion to Dismiss.”
In its order of June 28, 1983, the district court ordered that the motion to dismiss filed by the City defendants be considered as a motion for summary judgment. The eourt then prescribed a briefing schedule, stating that Arndt was to respond “to the city’s motion and to the motion to dismiss filed by defendants Metropolitan Properties, Inc. and GB Corp.” It thus appears that the district court initially intended to treat only the motion to dismiss filed by the City defendants as a motion for summary judgment under Fed.R.Civ.P. 56.
The district court entered its order granting the motions to dismiss on September 1, 1983. In its memorandum opinion, the court stated that:
This cause is now before the court on the defendants’ motions to dismiss, which have been treated as motions for summary judgment for purposes of briefing and oral arguments. Upon consideration of the pleadings, briefs, affidavits, and other supporting materials submitted by plaintiff and defendants, and based on material facts not in dispute, the court concludes that the defendants’ motions to dismiss are due to be granted . . . .
Record, Volume 1, at 110-11. The district court’s referral to the “defendants’ motions to dismiss” does not reveal whether the court meant to treat the motions to dismiss filed by both the City and corporate defendants as motions for summary judgment or was simply addressing the City defendants’ motion. It is evident, however, that the district court did adjudicate the City defendants’ motion on summary judgment.
The Fifth Circuit Court of Appeals phrased it best in Tuley v. Heyd, 482 F.2d 590 (5th Cir.1973) when it stated that:
It is a familiar principle that the label a district court puts on its disposition of a case is not binding on a court of appeals. When a district court grants a motion styled a motion to dismiss, but bases its ruling on facts developed outside the pleadings, the appellate court will review the ‘dismissal’ as a summary judgment under the standards laid down in Fed.R.Civ.P. 56.
Id. at 593 (citations omitted). Accord Save Our Cemeteries, Inc. v. Archdiocese of New Orleans, Inc., 568 F.2d 1074, 1077 (5th Cir.), cert. denied, 439 U.S. 836, 99 S.Ct. 120, 58 L.Ed.2d 133 (1978); Village Harbor, Inc. v. United States, 559 F.2d 247, 249 (5th Cir.1977). This ruling is premised on Fed.R.Civ.P. 12(b) which states that if matters outside the pleadings are presented to and not excluded by the court, a Fed.R.Civ.P. 12(b)(6) motion shall be considered as a motion for summary judgment. Though the district court did speak in terms of “motions to dismiss,” the order of September 1, 1983 makes it clear that the judge considered not only the pleadings, but the parties’ briefs and other supporting materials. Accordingly, we will review the district court’s judgment in conformance with the standards developed for the review of grants of summary judgment motions.
II.
The just compensation clause of the fifth amendment states that private property shall not be taken for public use without just compensation. The clause is made applicable to the states through the due process clause of the fourteenth amendment. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450, 66 L.Ed.2d 358, 364 (1980). While the question of what constitutes a taking is, in the language of the Supreme Court, a “problem of considerable difficulty,” the Court has recognized several distinct categories of governmental action which may constitute a taking of private property. The typical taking occurs when a government entity exercises its power of eminent domain to obtain title to the property through formal condemnation proceedings. See, e.g., Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954) (redevelopment plan authorized redevelopment agency to obtain title to property by eminent domain). A permanent physical occupation of the property, absent a formal condemnation proceeding, may also effect a taking. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (installation of cable television equipment on private property pursuant to authorization contained in state law). In addition, governmental action short of the acquisition of title or permanent physical occupation can constitute a taking where its effects deprive the owner of all or most of his use or interest in the property. United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 359-60, 89 L.Ed. 311, 318 (1945). For example, the Court has construed physical invasions of or physical interference with property as a taking. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) (attempt to create public right of access to marina joined to navigable bay as result of private development of inland lagoon); United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947) (property permanently flooded by government dam project); United States v. Causby, 328 U.S. 256, 66 5. Ct. 1062, 90 L.Ed. 1206 (1946) (frequent low altitude flights of military planes over property). Finally, police power regulations restricting the use of property may also constitute a taking. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (state regulation prohibiting mining of coal). See generally San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 651-53, 101 S.Ct. 1287, 1304-05, 67 L.Ed.2d 551, 572-73 (1981) (Brennan, Stewart, Marshall, Powell, JJ., dissenting) (discussion of what governmental actions may amount to a taking).
Not every governmental action interfering with a property interest is a taking entitling the owner to compensation. A case in point is the initial legislative determination that property should be taken for public use. In Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240 (1939), the Supreme Court stated that:
A reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project. Such changes in value are incidents of ownership. They cannot be considered as a ‘taking’ in the constitutional sense.
... The mere enactment of legislation which authorizes condemnation of property cannot be a taking. Such legislation may be repealed or modified, or appropriations may fail.
Id. at 285, 286, 60 S.Ct. at 236, 237, 84 L.Ed. at 246, 247.
In the present case, assuming Arndt’s allegations to be true, it is clear that the defendants’ actions do not fall within the ambit of the recognized categories of taking. First, the record, shows that, as of the time of the suit, Arndt’s property had never been the subject of formal condemnation proceedings. Second, Arndt cannot allege the necessary interference with his interest in and use of the Block 60 property. There is nothing in the record to indicate either a permanent physical occupation or physical invasion of the property or to support a showing of interference with the use of the property either through direct physical means or express restriction. Arndt urges nonetheless that the district court erred in rejecting its claim that the City’s actions amounted to a taking of its property, premising its argument on two contentions. First, Arndt says that contemporary legal theory has moved away from the Supreme Court’s holding' in Dan-forth v. United States. Second, even if Danforth is still good law, Arndt argues that it is inapposite because it did not involve allegations of lack of lawful condemnation authority and abuse of condemnation powers. We disagree on both counts.
Arndt rests its argument that Danforth is no longer good law on an analysis of case law which it maintains has cut away at the validity of Danforth. The Supreme Court, however, has never overruled its decision in Danforth. Furthermore, the cases cited by Arndt are inapplicable. These eases primarily involve challenges to state regulatory activity. The fundamental error in this analysis is the assumption that Resolution No. 1119-81 is a regulatory ordinance. The resolution, however, does not attempt to restrict or regulate Arndt’s use of its Block 60 property. Rather, the resolution simply makes a legislative determination that Block 60 of downtown Birmingham is a blighted area subject to condemnation. Even assuming that Resolution No. 1119-81 was a Regulatory ordinance, Arndt has made no showing that enactment of the resolution deprived it of the beneficial use of its property. Indeed, the record discloses that at the time of the district court’s September 1, 1983 order, almost two years after the adoption of Resolution No. 1119-81, Arndt continued to operate a business at the Block 60 location. The Supreme Court made clear in Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962), that an otherwise valid exercise of the police power is not an unconstitutional taking simply because the regulation deprives the owner of the most beneficial use of his property. Id. at 592, 82 S.Ct. at 989, 8 L.Ed.2d at 133. See also Nasser v. City of Homewood, 671 F.2d 432, 438 (11th Cir.1982) (neither deprivation of most beneficial use of land nor severe decrease in property value is a taking of property).
Arndt’s attempt to use this court’s decision in Fountain v. Metropolitan Atlanta Rapid Transit Authority, 678 F.2d 1038 (11th Cir.1982), as authority for the proposition that Danforth is no longer viable also misses the point. In Fountain, the plaintiff-appellant brought an inverse condemnation action against the Metropolitan Atlanta Rapid Transit Authority (“MARTA”) alleging that MARTA’s actions in closing off streets providing vehicular access to the plaintiffs service station during construction of a subway system line constituted a taking of property for public use without just compensation. This court concluded that the district court erred in dismissing the suit for lack of subject matter jurisdiction. In the course of the opinion, the court stated that “[a] taking occurs whenever a public entity substantially deprives a private party of the beneficial use of his property for a public purpose.” Id. at 1043. Nowhere in that opinion is there any intimation of Danforth’s diminished validity.
Likewise, Arndt’s citation of Richmond Elks Hall Association v. Richmond Redevelopment Agency, 561 F.2d 1327 (9th Cir. 1977) and Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784 (8th Cir.), cert. denied, 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135 (1979), does not convince us that the principle of Danforth has been eroded. In Richmond, the plaintiff’s property was within an area declared blighted in September 1959. The redevelopment plan was afforded wide publicity, a schedule for acquiring property within the project area was established, and the redevelopment agency began acquisition and demolition in the area. The plaintiff suffered a loss in rental income from the property and street improvement within the area flooded the plaintiff’s basement. In 1972, the agency informed the plaintiff that it would not acquire the property. The district court held that a compensable taking occurred in 1968, nine years after the declaration of blight, because the agency’s actions had severely limited the property’s use for its intended purposes. The Ninth Circuit Court of Appeals affirmed.
In Garland, the city’s Board of Aider-men passed an ordinance in June, 1971, declaring a portion of the municipality which included the plaintiff’s leased premises to be a blighted area. Agents for the developer chosen by the city ordered the plaintiff to vacate its premises in March 1973. According to the plaintiff’s complaint, condemnation proceedings were initiated in April 1973. Between 1973 and 1975, the developer’s agents acquired the fee interest in plaintiff’s leased property. Demolition of surrounding buildings caused structural damage to the plaintiff’s building and debris from the demolition blocked the entrance to its loading dock, clogged the air conditioning system, and covered its merchandise with dust. The Eighth Circuit Court of Appeals reversed the district court’s dismissal of the plaintiff’s complaint for failure to state a claim for relief. In doing so, the court cited Danforth for the proposition that the “mere declaration of blight and other initial steps authorizing condemnation, even if they result in a decline in property values, do not constitute a taking requiring compensation to the property owner.” Garland, 596 F.2d at 787.
Unlike the plaintiffs in Richmond and Garland, the record does not reflect that Arndt’s property was ever the subject of condemnation proceedings or suffered any physical damage. The cases are therefore distinguishable from the facts of this case. Furthermore, neither case supports Arndt’s claim that Danforth is no longer good law. For these reasons we cannot agree that the district court erroneously relied on Dan-forth in determining that the City of Birmingham’s resolution declaring Block 60 a blighted area did not constitute a taking of property without due process in violation of the fifth and fourteenth amendments.
We must likewise reject Arndt’s argument that, assuming the principle of Dan-forth is still alive and well, it is inapplicable to this case because it did not include allegations of lack of lawful condemnation authority and abuse of condemnation powers. Arndt points out that its complaint is not premised solely on the allegation that enactment of Resolution No. 1119-81 effected a taking of Arndt’s property. Rather, it contends that the alleged lack of lawful authority in the City to enact the resolution and the purported abuse of the police and condemnation powers by the defendants in reality constituted a taking. The bases for this assertion are Arndt’s allegations that the City did not have the requisite statutory authority to condemn Block 60 as a blighted area and that the defendants intentionally manipulated the evidence to support the finding of blight.
Arndt cites to two decisions that it claims sanction its conclusion, Espanola Way Corp. v. Meyerson, 690 F.2d 827 (11th Cir. 1982), cert. denied, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 791 (1983), and Suthoff v. Yazoo County Industrial Development Corp., 637 F.2d 337 (5th Cir. Unit A 1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1032, 71 L.Ed.2d 316 (1982). Neither case sustains the merits of Arndt’s argument. In Española, the plaintiff alleged that Miami Beach City Commissioners, concerned by a criminal element among the great influx of Cuban refugees, decided to attack the problem by closing down hotels that housed the refugees. To this end, the plaintiff contended that the commissioners assembled a task force of building code and fire inspectors to conduct frequent inspections of the hotels and to write citations for violations of the city codes until the hotels were driven out of business. A panel of this court reversed the district court’s order dismissing the complaint for failure to state a claim. The court stated that the complaint did contain sufficient factual allegations to state a claim for taking of property without due process of law. We intimated nothing, however, as to the merits of the plaintiff’s claim.
Similarly, in Suthoff, the plaintiffs claimed that the City of Yazoo was induced to institute condemnation proceedings to expropriate plaintiffs’ property for sewerage purposes with the intent of coercing the plaintiffs into selling their property at a reduced price to Yazoo County. The plaintiffs alleged that the City never intended to acquire 'the property for sewerage purposes and subsequently dismissed the expropriation proceedings once plaintiffs sold the property. The Fifth Circuit Court of Appeals reversed the district court’s dismissal of the plaintiffs’ complaint for lack of subject matter jurisdiction, stating that “[n]or can we say the federal claim is so frivolous that the district court may not entertain jurisdiction of it, if only to dismiss it on its merits.” Suthoff, 637 F.2d at 339 (emphasis added).
In this case, the district court took jurisdiction of Arndt’s federal claims, but disposed of them on the merits. Assuming Arndt’s allegations to be true, we cannot say that the district court was in error. Arndt’s property has never been the subject of condemnation proceedings. It is also clear from the record and from Arndt’s own complaint that the property in question was in Arndt’s possession at all times relevant to this appeal. Arndt, assisted by an attorney, negotiated with the City and Metropolitan for the option to terminate Arndt’s leasehold interest in the Block 60 property. The agreement stipulated a total price of $206,000.00 to be paid upon the exercise of the option. Arndt does not contend that this was not a fair market price. Based on these facts, there was no error in finding that Arndt’s property was not taken for public purposes.
III.
Arndt’s contention that the defendants’ actions constituted a denial of substantive due process is also necessarily precluded by these same facts. “In order to make out a claim of deprivation of Fourteenth Amendment due process rights a plaintiff must demonstrate first, that he has been deprived of liberty or property in the constitutional sense .... ” Drummond v. Fulton County Department of Family & Children’s Services, 563 F.2d 1200, 1206 (5th Cir.1977) (citing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)), cert. denied, 437 U.S. 910, 98 S.Ct. 3103, 57 L.Ed.2d 1141 (1978). Accord Hunter v. Florida Parole & Probation Commission, 674 F.2d 847, 848 (11th Cir.1982); McElwee v. Todd, 581 F.2d 1182, 1183 (5th Cir.1978). Arndt has not demonstrated that the defendants’ actions deprived him of a constitutionally protected property interest. As noted earlier, Arndt’s leasehold interest was never subjected to a condemnation suit or to any regulation restricting its use. The property was, by Arndt’s own admission, still in use as a clothing store as late as September 19, 1983, the date of the filing of the amended complaint. Arndt negotiated an arm’s length agreement to grant the City or its assigns an option to terminate its interest in the property for the price of $206,000.00. Since Arndt has not been deprived of its property interest, it cannot claim that it has been denied the substantive protections of the fourteenth amendment due process clause.
IV.
Finally, Arndt maintains that the district court abused its discretion in refusing to apply the doctrine of offensive collateral estoppel to preclude the defendants from relitigating issues decided adversely to them in an Alabama state court proceeding in Tutwiler Drug Company v. City of Birmingham, Alabama, No. CV 81 504-897 JDC (Ala.Cir.Ct.1983). The Tutwiler case also arose out of the passage of Resolution No. 1119-81. The state trial court found that the City did not have the authority to enact the resolution and acted arbitrarily and capriciously in passing the resolution.
In approving the use of offensive collateral estoppel in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), the Supreme Court cautioned that one of the major arguments against application of the doctrine was the potential increase in litigation. If use of offensive collateral estoppel were sanctioned without restraint, potential plaintiffs would benefit from a decision adverse to the defendant but would not be bound by a judgment favorable to the defendant. The plaintiff would therefore have no incentive to intervene in the first action against the defendant. Rather, the impetus would be to wait and hope that the first action by another plaintiff would result in a decision against the defendant. Id. at 329-30, 99 S.Ct. at 650-51, 58 L.Ed.2d at 561. For this reason, the Court adopted the general rule that the trial court, in the exercise of its broad discretion, should not permit offensive- collateral estoppel when the plaintiff could easily have joined in the first action or when application of the doctrine would be unfair to the defendant. Id. at 331, 99 S.Ct. at 651-52, 58 L.Ed.2d at 562.
The record in this case establishes that Arndt was aware of the ongoing litigation between the City and Tutwiler Drug Company. One of the affidavits submitted by the City stated that Charles J. Arndt, III, president of Charles J. Arndt, Inc., testified in the earlier suit on behalf of Tutwiler Drug on two different occasions. Record, Volume 1, at 109. To countenance such practice so that Arndt could now use the decision in the Tutwiler case against the defendants would serve only to promote the “wait and see” attitude disapproved by the Court in Parklane. In these circumstances, we cannot say that the district judge abused his discretion in refusing to accord collateral estoppel effect to the state court decision proffered by Arndt.
For these reasons, the judgment of the district court is AFFIRMED.
. The City, the mayor, and other city officials will be collectively referred to as the City defendants. Metropolitan and GB Corporation will be referred to as the corporate defendants.
. The district court noted in a footnote that the city council defendants relied on an absolute immunity defense. Although the district court indicated that it tended to agree, it did not rely on the immunity defense in reaching its decision. The argument has not been raised before this court. Consequently, we do not address it.
. It is not clear in what manner the district court disposed of the corporate defendants’ motion. We need not specifically address this question, however, for if the claims against the City defendants lack merit, the action against the corporate defendants also fails.
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit decided prior to October 1, 1981.
. Federal Rule of Civil Procedure 12(b) states: If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
. In ruling on the grant of a summary judgment motion, the appellate court must look at the record in the light most favorable to the party opposing the motion and take the allegations as true. Murray v. Gelderman, 566 F.2d 1307, 1309 (5th Cir.1978).
. In Tutwiler Drug Company v. City of Birmingham, 418 So.2d 102 (Ala.1982), the Alabama Supreme Court held that the city council and the mayor acted in a legislative capacity in passing Resolution No. 1119-81. Id. at 106.
. In its original complaint, Arndt alleged that the adoption of Resolution No. 1119-81 also constituted a denial of procedural due process. The September 1, 1983 order of the district court disposed of this allegation on its merits. The court found that procedural dúe process need not be provided in the context of a legislative act, such as passage of the resolution, and that even if Arndt was entitled to procedural due process, the requisite notice and an opportunity to be heard had been provided by the City. As Arndt did not raise the claim of a denial of procedural due process before this court, we will not address the issue.
. Offensive collateral estoppel is used by a plaintiff seeking to foreclose the defendant from relitigating an issue which was decided adversely to the defendant in a prior action with another party. Defensive collateral estoppel is an attempt to prevent a plaintiff from relitigating an issue which the plaintiff has previously litigated unsuccessfully against another defendant. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 4, 99 S.Ct. 645, 649 n. 4, 58 L.Ed.2d 552, 559 n. 4 (1979).
. It is contrary to the concept of due process to make a judgment binding on a litigant who was not a party to the first action and did not have the opportunity for a hearing. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n. 7, 99 S.Ct. 645, 649 n. 7, 58 L.Ed.2d 552, 559 n. 7 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788, 800 (1971).
Question: Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
George N. CHARLTON, Jr., Appellant, v. UNITED STATES of America et al., Appellees.
No. 71-1629.
United States Court of Appeals, Third Circuit.
Argued May 5, 1972.
Decided June 15, 1972.
Harold Gondelman, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, Pa., for appellant.
Kathleen Kelly Curtin, Asst. U. S. Atty., Pittsburgh, Pa., for appellees.
Before VAN DUSEN, JAMES RO-SEN and HUNTER, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
Appellant George N. Charlton, Jr., a special agent for the Internal Revenue Service, was removed from his position on September 29, 1963, “to promote the efficiency of the Service.” The specific charges against Charlton were that he had (1) failed to report an attempted bribe; and (2) failed properly to care for official documents. The Hearing Officer sustained the removal of Charge 1 but found Charge 2 not proven. The Regional Commissioner, however, upheld the removal on both charges. Charlton exhausted his administrative appellate rights, and then brought an action in the District Court under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., to review the administrative determination. The defendants’ motion for summary judgment was granted by the District Court on April 26, 1967. The District Court found that all procedural requirements had been met, and held that the merits of the dismissal were beyond the scope of judicial review.
On appeal from that order, we reversed and remanded for further review of the administrative record. We held that 5 U.S.C. § 706 required the District Court:
“to review the administrative record and to determine whether the Commission’s action was supported by substantial evidence, or arbitrary, capricious and an abuse of its discretion.”
Charlton v. United States, 412 F.2d 390, 393 (3d Cir. 1969). On remand, the District Court again granted summary judgment for the defendants after a thorough review of the administrative record. Charlton has again appealed to this court.
While we may have drawn inferences from the evidence that would be different from those drawn by the Commission, our review of the record reveals substantial evidence that supports the charges for which Charlton was removed from his I.R.S. position. And despite our feeling that Charlton’s removal is a severe punishment for the violations that were charged, we cannot say that the discharge is arbitrary, capricious, or an abuse of discretion.
The District Court’s order granting summary judgment for the defendants will be 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:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
David Allen CHAPIN, Petitioner-Appellee, v. R.C. MARSHALL, Respondent-Appellant.
No. 82-3417.
United States Court of Appeals, Sixth Circuit.
Argued March 14, 1983.
Decided April 15, 1983.
Rehearing and Rehearing En Banc Denied July 19, 1983.
Simon Karas, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellant.
Jill E. Stone, Ohio Public Defender, Columbus, Ohio, for petitioner-appellee.
Before ENGEL, Circuit Judge, WEICK, Senior Circuit Judge, and BALLANTINE, District Judge.
Honorable Thomas A. Ballantine, Jr., United States District Judge for the Western District of Kentucky, sitting by designation.
PER CURIAM.
Ronald C. Marshall, Superintendent of the Southern Ohio Correctional Facility at Lucasville, Ohio, appeals from an order of the United States District Court for the Southern District of Ohio granting the writ of habeas corpus to David Allen Chapin. On March 15, 1979 a jury convicted Chapin of aggravated murder in violation of Ohio Rev.Code § 2903.01(A), and Chapin was sentenced to a term of life imprisonment. Chapin appealed to the Court of Appeals of Clermont County, arguing that the trial court erred by overruling his counsel’s mid-trial request for a competency hearing. On March 5, 1980 the Court of Appeals reversed Chapin’s conviction on this ground, but on December 5,1981 the Supreme Court of Ohio overruled the Court of Appeals, and reinstated Chapin’s conviction. State v. Chapin, 67 Ohio St.2d 437, 424 N.E.2d 317 (1981).
Chapin then filed a petition for writ of habeas corpus with the United States District Court for the Southern District of Ohio. Chapin’s sole ground for habeas corpus relief was the trial court’s refusal to hold a competency hearing after the trial commenced. On June 2, 1982 the district court granted Chapin’s petition, and this appeal followed.
Evidence offered at trial established that Chapin shot and killed his longtime friend and roommate, Donald Leming, during the late evening of October 3 or the early morning of October 4, 1978. Apparently an argument concerning religion precipitated the crime. Petitioner placed his roommate’s body in the trunk of his car, and drove to a State Highway Patrol Office, where he told the dispatcher on duty that he was wanted for murder. Petitioner said he was “going to kill someone” and when asked whom, stated that he had already killed him. The dispatcher officer then asked petitioner to leave.
Later that same morning, Chapin drove to Raymond Walters College, where he was a student, and spoke to his former botany professor, Dr. DeJong. Chapin told DeJong that he had a dead human body- in his car trunk, and asked DeJong if he wanted it for lab dissection. Petitioner then stated that the body was that of his best friend and that his friend had willed his body to science. Chapin also stated that he had been drinking, had gotten into an argument with his friend, and had shot him in self-defense. DeJong notified the police, who then took Chapin into custody.
On October 30, 1978, several months before trial, Chapin’s counsel filed a suggestion of incompetency to stand trial. Chapin was referred for psychiatric examination, and a competency hearing was held on December 6, 1978. Chapin was found competent to stand trial at that time.
Trial commenced on March 7, 1979. On the fourth day of trial defense counsel made a motion in chambers for a second competency hearing. Defense counsel asserted that Chapin’s mental condition had deteriorated, and also presented several psychiatrists who testified that Chapin was mentally ill and in fact had a long history of mental illness. The trial court, however, overruled Chapin’s request for a' second competency hearing on the basis of the December 6,1978 decision holding that Chapin was competent to stand trial.
In granting habeas corpus relief, the district court stated that Chapin had presented evidence which raised a reasonable doubt concerning his competency to stand trial, and that therefore the trial judge was constitutionally required to hold a competency hearing. Chavez v. United States, 641 F.2d 1253, 1258 (9th Cir.1981). On appeal, the state argues that defense counsel’s mid-trial suggestion of incompetency did not warrant a second competency hearing.
In reversing the Ohio Court of Appeals and reinstating Chapin’s conviction, the Ohio Supreme Court thoroughly reviewed all of the evidence and observed:
Our task herein is ultimately to determine whether appellee received a fair trial and whether, under the facts in this cause, appellee met the requisite standard of “good cause shown,” pursuant to the present R.C. § 2945.37, which would warrant a hearing on the issue of competency to stand trial.
The record clearly indicates that a hearing concerning competency to stand trial was held approximately three months before trial, whereupon the evidence submitted, which included psychiatric reports, resulted in the decision that appellee was competent to stand trial. Thus, all prior medical reports clearly indicated that appellee was competent to stand trial.
The record further discloses that, except for one minor, isolated instance, appellee had not displayed any ludicrous or irrational behavior at trial which would suggest to the court that an additional hearing was necessary.
The record is devoid of any objective indications as to how and to what extent appellee’s mental condition has changed. The only suggestion of appellee’s declining mental condition is a sole unqualified and unsubstantiated assertion made by defense counsel on the fourth day of the trial. The claim of incompetency to stand trial was that an additional defense counsel had talked to appellee over the weekend and that by reason thereof there was a serious question as to appellee’s competency to stand trial. Defense counsel simply concluded without further specific indications or evidence that “I do not believe that David [appellee] has the ability to assist counsel in his own defense.”
It is clearly evident that there is no objective indication demonstrated by appellee’s conduct, medical reports or specific reference by defense counsel of irrational behavior or the like that would indicate “good cause shown” for the allowance of an additional hearing.
State v. Chapin, 67 Ohio St.2d 437, 441-42, 424 N.E.2d 317 (1981).
Upon such findings, which were unanimously reached by the Ohio Supreme Court and to which we defer, 28 U.S.C. § 2254(d), we conclude that it was error for the district judge to reach a contrary decision even though as an initial matter another trier of fact might have so concluded. We are particularly impressed by the ability of the state trial judge to actually observe Mr. Chapin’s demeanor during the trial and by the absence of any concrete indication that Chapin’s mental condition in any way impeded his ability to assist in his own defense. Accordingly,
The judgment of the district court is reversed and the cause remanded with instructions to dismiss the petition.
On the fifth day of trial, after the trial court had denied the motion for a hearing of competency to stand trial, the appellee, during the testimony of a defense witness, stood up and began to slowly exit the courtroom. This is the only questionable occurrence exhibited by the appellee in the courtroom.
The record is devoid of any other subtle nuances or questionable actions by the appel-, lee during trial. Therefore, it seems that appellee was, in general, quite alert and attentive throughout this long trial, which is supportive of appellant’s argument that an additional hearing is unnecessary.
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_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".
HEBREW HOME FOR THE AGED v. DISTRICT OF COLUMBIA.
No. 8622.
United States Court of Appeals District of Columbia.
Submitted April 4, 1944.
Decided May 8, 1944.
Messrs. Simon Hirshman and Norman Fischer, both of Washington, D. C., were on the brief for petitioner.
Messrs. Richmond B. Keech, Corporation Counsel, D. C., Vernon E; West, Principal Assistant Corporation Counsel, D. C., and Glenn Simmon, Assistant Corporation Counsel, D. C., all of Washington, D. C., were on the brief for respondent.
Before GRONER, C. J., and MILLER and EDGERTON, JJ.
EDGERTON, J.
The Hebrew Home for the Aged asks review of a decision of the Board of Tax Appeals for the District of Columbia which upheld tax assessments for 1941 and the first half 1942.
According to the Board’s findings, both the Home and the Jewish Social Service Agency are public charities. In 1939 the Home leased land to the Agency for twenty years. The lessee agreed to pay a nominal rent of $1 a year and to erect a building in accordance with plans and specifications to be approved by the lessor. “At the expiration of the term” this building was to “be and become the property of the lessor.” A building worth $25,000 was erected and used by the lessee and has been assessed to the lessor.
The District of Columbia Code provides that real property “shall be assessed in the name of the owner.” The Code exempts from taxation, with certain exceptions, “buildings belonging to institutions of purely public charity * * The principal exception is that “if any portion of any such building, house, grounds * * * is larger than is absolutely required and actually used for its legitimate purpose and none other, or is used to secure a rent or income * * * such portion * * * shall be taxed against the owner of said building or grounds * * *.” If the Home is the owner of the building, and it is larger than is required and used for the Home’s purpose or is used to secure income, within the meaning of these Code provisions, the building is properly assessed to the Home. The fact that the lessee is also a public charity does not exempt the building from taxation.
When a lessee of land erects a permanent building the lessor owns it. His ownership attaches immediately whether or not he derives immediate benefit from it. The apparent purpose of the covenant in the lease, that at the expiration of the tern the building would “be and become” the property of the lessor, was not to change the ownership in the meantime but to preclude any claim on the part of the lessee that the lessor should pay the cost or value of the building. No agreement that the lessee should be regarded as owner, either in general or for assessment purposes, during the term of the lease can fairly be read into this covenant. We need not consider whether such an agreement, if made, would be effective to prevent the District of Columbia from assessing the lessor.
Exemptions from taxation are construed strictly. Since the building and the ground on which it stands are used for the purposes of the Agency, and not for those of the Home, they are “larger than is absolutely required and actually used” for the Home’s “legitimate purpose and none other.” Therefore the building was not exempt from taxation. We need not consider whether it was used to secure income.
Affirmed.
D.C.Code (1940) § 47—701.
D.C.Code (1940) § 47—801. The Act of December 24, 1942, 56 Stat. 1089, D.C.Code 1940, § 47—801a et seq., is not applicable in this suit.
Kutter v. Smith, 69 U.S. 491, 2 Wall. 491, 17 L.Ed. 830.
People ex rel. International Navigation Co. v. Barker, 153 N.Y. 98, 47 N.E. 46.
In a separate covenant the lessee Agency agreed “to pay, on the first day of October of each year, on presentation to it of proper tax bills, any taxes, general or special, which may be levied or assessed by the District of Columbia, or the Federal Government in connection with the use by the lessee of the land herein leased and the building to be erected thereon.” This covenant does not imply that taxes are to be assessed to the lessee.
National Rifle Ass'n of America v. Young, 77 U.S.App.D.C. 290, 134 F.2d 524. Cf. Combined Congregations of District of Columbia v. Dent, — U.S.App.D.C. —, 140 F.2d 9.
Gibbons v. District of Columbia, 116 U.S. 404, 6 S.Ct. 427, 29 L.Ed. 680.
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_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.
BUTLER MFG. CO. v. ENTERPRISE CLEANING CO. et al.
No. 10321.
Circuit Court of Appeals, Eighth Circuit.
Jan. 28, 1936.
Thomas E. Scofield, of Kansas City, Mo. (Spencer F. Harris and Henry L. Shenier, both of Kansas City, Mo., and John H. Bruninga, of St. Louis, Mo., on the brief), for appellant.
Henry M. Huxley, of Chicago, Ill. (Delos G. Haynes, of St. Louis, Mo., and Ralph Munden, of Chicago, Ill., on the brief), for appellee Filtration Products Co.
Harry A. Beimes, of St. Louis, Mo., for appellee Enterprise-Cleaning Co.
Before GARDNER, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.
VAN VALKENBURGH, Circuit Judge.
This case involves a contest between systems employed in the dry cleaning of textile materials, such as soiled garments and the like. Appellant is the owner of three patents: The Fenton patent, No. 1,-669,235, issued May 8, 1928; the Hatfield patent, No. 1,704,604, issued March 5, 1929; and the Hatfield-Alliott patent, No. 1,728,-343, issued September 17, 1929. It is charged that three claims in each patent are infringed by the process employed by appellee Enterprise Cleaning Company, and recommended by appellee Filtration Products Company. The latter company accordingly sought and was granted leave to intervene, was made a defendant, and filed answer. The Fenton patent is for a “Dry Cleaning System.” The specification states that the invention has for its object economy in dry cleaning, and that it will substantially do away with the necessity of distilling the dry-cleaning fluid. It embraces both the process and the apparatus for accomplishing the stated results. Only process claims are here involved, to wit, Nos. 1, 11, and 14. Claim 1 reads as follows: “In dry-cleaning, the herein "described process which comprises subjecting soiled textile material containing greasy or oily material to the action of a volatile organic solvent which is substantially non-miscible with water; drawing off the solvent with accumulated impurities; agitating the said solvent carrying impurities together with a solid material insoluble therein, which material possesses good adsorbing properties; separating the solid adsorbing material with accumulated impurities from the said solvent by filtration; and returning the solvent free from said adsorbing material and adsorbed impurities in a substantially continuous manner to-the first-men•tioned step -of the process, until the said textile material has been cleaned to the desired extent.”
The steps in this process are explained by the language of the specification and the illustrations of the accompanying drawings. The specification describes the operation thus: “The gasoline as above stated removes the greases and oils and also the solid dirt from the cloth or other material being washed in the washer 20. When this liquid is agitated with Fuller’s earth or like adsorbing material in the agitator tank, the Fuller’s earth will adsorb and take up both the solid impurities and the oils and greases from the gasoline, leaving the said gasoline completely purified, and when the solid material has been separated from the gasoline in the separator 72 the said gasoline is entirely clean and may be then run back into the washer 20.”
The drawings consist of nine figures covering three pages, too extended to set out in full here. It will suffice to point out that figure 1 shows a washer (20) ; figures 1 and 8 an agitator tank distinct from the washer, and figure 1 a centrifugal separat- or or filter (72). Accordingly, we are able to resolve the process described by this claim into the following essential steps or elements: (1) Subjecting the textile material to a volatile organic solvent such as gasoline, naphtha, and the like; (2) drawing off the solvent with accumulated impurities; (3) agitating in an agitator tank the said solvent carrying impurities, together with a solid material insoluble therein, which material possesses good adsorbing properties; (4) separating, in a centrifugal separator, this material from the solvent by filtration; (5) returning the solvent free from said material and impurities in a substantially continuous manner to the first-mentioned step of the process, that is, the washer.
From the foregoing, as explained and clarified by specification and drawings, it appears that the textile material to be cleaned is placed in a washer containing the solvent. There the rotation of washer drum causes the clothing to be tumbled about-with the solvent, which absorbs and dissolves the greases, oils, and other soluble material, and loosens the dirt so that it readily goes into suspension in the solvent. The liquid carrying these impurities is then drawn off from the washer into the agitator tank, into which is fed the clarifying material described as having, good adsorbing properties; thence, after agitation, the mixture is carried to the separator or filter wherein this solid adsorbing material with accumulated impurities is separated from the solvent, which is then returned to the washer in a substantially continuous manner.
Claim 11 differs in no substantial degree from claim 1. The “solid adsorbing material” of the latter is described as a “coagulating adsorbent agent” in the former.
Claim 14 reads thus: “A process for the recuperation of dry cleaning fluids which comprises mixing therewith a suitable agent for the coagulation of the colloid impurities, agitating the mixture, and filtering the fluid from the coagulating agent and the coagulated impurities.”
This claim, while describing no specific process, is evidently intended to cover any process for the recuperation of dry-cleaning fluids which employs the steps recited and disclosed in the specification and accompanying drawings. It is pointed out that this claim 14 is directed to a process for recuperation of dry-cleaning fluids, and not to dry-cleaning processes, as are claims 1 and 11. This is borne out by Fen-ton’s statements in his letter to the Commissioner of Patents, of January 3, 1924, while his application was under consideration. He says: “Applicant has added a claim to the method of purifying the cleaning liquid, wherein the office suggests that invention lies. * * * It must be remembered that there is a distinct and vital difference between filtering out the impurities which are present in solid form and removing the dissolved impurities or those in colloid form.”
The colloidal impurities referred to are such substances as diffuse slowly, if at all. In the specification, especial emphasis is placed upon the presence of the agitator tank. The patentee says: “While a small quantity of the dirt could be separated by simple filtration, if the agitator tank and clarifying material supplied were omitted, the result would not be satisfactory, since the odors and greases would not be sufficiently removed from the clothing.”
When this patent was before the Patent Office, claims 1 and 11, with others, were rejected by the Examiner on the ground that they were held to involve four general steps: (1) Subjecting textiles to a cleaning agent which is a solvent for grease; (2) withdrawing the cleaning agent; (3) purifying the cleaning agent; (4) returning the purified cleaning agent to step 1. This combination of steps was held to be old as shown by patent to Traube, No. 1,291,266, in reference. On appeal to the Board of Examiners-in-Chief, the applicant combattqd this criticism as follows: “The dirty liquid is pumped from the washer to a tank, is fed in measured quantities from the tank to an agitator, is mixed in said agitator with a solid material possessing good absorbing qualities. * * * Referring to the patent to Traube, this patent fails to show the agitator. * * * From applicant’s viewpoint Claim 1 covers five separate and distinct steps which are indicated in the Claim by being set apart by semicolons. Even admitting that Traube has the four steps as stated in the Examiner’s statement of the reference, nevertheless it is not believed that a process which has four steps is a proper anticipation of one which has five.” The board, holding that the Traube specification contained “no reference to a possible agitation .or agitation means, an important step of appellants’ process or apparatus,” etc., was of opinion that “in the absence of more pertinent art” the claims were patentable.
The Hatfield patent is for “Purifying Dry-Cleaning Solvent.” The specification states that “hitherto the solvent used for this purpose has been clarified and dehydrated by various means, such as processes of filtration, the use of centrifugal separators, or dissociation, or precipitation by various chemical re-agents. Tests have shown, however, that in no cases is the effluent perfectly free of moisture and foreign matter.” The applicant continues as follows: “I have now found that if, in the process of dry cleaning, the soiled solvent is treated with a finely divided porous cellular silica (hereinafter referred to as filter aid) of a sufficiently low specific gravity and the solvent containing the particles of the said filter aid in suspension is passed to a filter, the filtrate is substantially free of moisture and foreign matter and can be passed back to the washing machine in a continuous cyclic process.”
The dirty solvent is mixed with the filter aid after it has passed out of the washing machine. An agitating tank is contemplated but “instead of the use of an agitating tank the filter aid may be run or pumped continuously during the process into a pipe-line, along which the solvent passes from the washing machine to the filter press and such pipe-line may be suitably designed to assist in the thorough mixing of the filter aid and any reagents that may be employed with the solvent.”
The claims involved are 1, 2, and 7. Claim 1 reads thus: “A process for clarifying and dehydrating the soiled solvent of washing machines used for dry cleaning, consisting in withdrawing the soiled solvent from the washing machine, adding to the soiled solvent finely divided porous cellular silica of low specific gravity, passing the solvent containing particles of said silica in suspension to a filter, there filtering the solvent. and then returning the filtered solvent to the washing machine in a continuous cyclic process.”
The following are the steps in this process: (1) Withdrawing the soiled solvent from the washing machine; (2) adding thereto finely divided porous cellular silica of low specific gravity; (3) passing the solvent containing particles of the silica in suspension to a filter; (4) filtering the solvent; (5) returning the'filtered solvent to the washing machine in a continuous cyclic process.
Claim 2 is identical with claim 1, with the addition of the. following words not pertinent here: “The rate.of passing the solvent through the washing machine being adapted to change the bath at least once in every five minutes.”
Claim 7 contains the same steps, but in the following order of statement: (1)
Withdrawing the soiled solvent from the washing machine; (2) passing solvent to a filter; (3) filtering; (4) returning filtered solvent to washing machine-in a continuous cyclic process; (5) “during the process adding finely divided porous cellular silica to the soiled solvent.” This form of statement was evidently intended to cover a process in which an equivalent to the agitating tank is employed as quoted above from the specification.
It will be seen that the claims of this patent in suit each involve five general steps, and that the filter aid employed is added after the soiled solvent is withdrawn from the washing machine. It will further be noted that no drawings accompanied this application, and that the steps of the process follow ■ closely in substance those of the Fenton patent. In fact, the only apparent differences are the permissible substitution of an equivalent for the agitating tank, and the use of the porous cellular silica as a filter aid, instead of those designated and suggested by Fenton, who says: “I have referred above to the use of Fuller’s earth as the absorbing or clarifying material. The invention is not restricted to the use of this specific material, but numerous other materials acting in a similar manner may be employed; for example, pulverized talc or diatomaceous earth.” In the specification it is this selection of the silica as a filter aid that Hatfield emphasizes as the advance over the prior art which constitutes novelty and invention.
The Hatfield and Alliott patent in suit contains three claims, 1, 2, and 3, against which infringement is charged. The only substantial difference between these claims and those of the Hatfield patent, No. 1,-704,604, is the addition to the cleaning fluid of “soap of high solubility and emulsifying power having little tendency to disassociate.” In the specification the applicants say that they have now discovered an improved process wherein both the filter aid disclosed in said patent 1,704,604 and the dry-cleaning soap just described may be employed in conjunction to effect an improved result.. It is stated that the soap theretofore employed, being imperfectly soluble, and having a tendency to disassociate, has imposed a clogging effect upon the filter press, which is absent in this new process.
The facts concerning the alleged infringement are thus found by the trial court:
“Intervener-defendant, Filtration Products Company, prior to the filing of the Bill of Complaint herein, installed at the plant of defendant, Enterprise Cleaning Company, during the year 1927, and elsewhere within the United States, apparatus for cleaning clothes, as diagrammatically illustrated in Filtration Products Company’s Exhibit 1, a reproduction of which is attached hereto, and has recommended the use of the following processes of cleaning in connection with such apparatus, to-wit:
“(a) The clothes to be cleaned are put into the washer with a solvent, such as naphtha, and a diatomaceous earth filter aid, specifically what is known as ‘Hyflo-Supercel,’ is added in the washer. The washer is oscillated back and forth. The pump is started, and the solvent with the filter aid carried thereby is withdrawn from the washer, together with the dirt extracted from the clothes. The trap serves to catch buttons and heavy objects of that kind which may be drawn off. The liquid containing the filter aid and dirt is forced by the pump to the filter, where the filter aid and dirt build up a porous cake, the filtered solvent being forced back to the washer in a continuous process. When the cleaning of the clothes is completed, the operation is stopped and the clothes removed from the washer. No filter aid is added to the solvent at any point in the system except within the washer.
“(b) This process is the same as that described in connection with (a) of this finding, except that a liquid known as hexalin, which is an alcohol, is also added in the washer.
“(c) For a short period, intervener-defendant sold, but not to Enterprise Cleaning Company, a gasoline soluble soap, and recommended, but not to Enterprise Cleaning Company, the use of such soap in the process described in (a) of this finding, the soap to be added in the washer. The use of this soap did not prove satisfactory and its sale and recommendation for use were discontinued by intervener-defendant.”
The court also found that in the process described under (a) the Enterprise Cleaning Company has added to the washer a soap known as “Dri-sheen,” and in addition to the “Hyflo-Supercel” a substance called “Morgan Sweetener,” which is fuller’s earth. The court also found that “Dri-sheen” is not a highly soluble soap. All these findings receive substantial support in the testimony. Exhibit 1, the diagrammatic illustration of the alleged infringing process is here reproduced.
The steps in the process are seen to be (1) a washer containing a dry-cleaning solvent and a diatomaceous earth filter aid; (2) the withdrawal from the washer of the soiled solvent; (3) filtration; (4) return 'of the filtered solvent to the washer in a continuous process. The agitator tank or its equivalent in the patents in suit is absent. Appellant contends that the oscillation of the washer in the Enterprise Cleaning Company’s process discharges this same function; but that operation takes place in appellant’s processes before the soiled solvent is withdrawn and the filter aid added, and still the subsequent agitation by tank, or continuous pipe line pumping, is claimed and emphasized. It is apparent that the alleged infringing process lacks an essential step claimed in the patents in suit.
The conclusions of law of the trial court were:
“If the claims of the Fenton patent are construed to cover the processes used by the defendant Enterprise Cleaning Company, or recommended by the intervenerdefendant Filtration Products Company, they are invalid as not involving invention over the prior art.
“The Hatfield Patent No. 1,704,604 has not been infringed by defendants. Claims 1, 2 and 7 of the Hatfield Patent No. 1,-704,604 are invalid as anticipated and involving no invention over the prior art.
“The Hatfield and Alliott Patent No. 1,728,343 has not been infringed by defendants. The three claims of the Hatfield and Alliott Patent No. 1,728,343 are invalid as anticipated and involving no invention over the prior art.”
Accordingly the bill of complaint was dismissed for want of equity.
Continuous cyclic processes in systems for dry cleaning were in well known operation in the prior art. Traube, 1,291,266, January 14, 1919; Messer, 1,271,599, July 9, 1918; Smith & Luke, 1,385,724, July 26, 1921. The two latter patents were not in reference when the applications of the patent in suit were pending in the Patent Office. It appears from testimony that if one were to introduce a filter aid into the solution used in the Smith and Luke process, the Fenton process would result. In other words, the Smith and Luke patent taught everything claimed in the Fenton patent except the use of a filter aid. Likewise, the Fenton application, which was prior in time to that of Hatfield, taught everything in the latter, except, as Hatfield admits, the selection of the porous cellular silica as a filter aid. The Hatfield and Alliott patent added only a specified type of dry-cleaning soap which appellees are found neither to recommend nor use. The use of soap, such as that employed by the Enterprise Cleaning Company is old in continuous cyclic processes. Messer, and Smith & Luke patents, supra.
Again, filter aids were well known in the prior analogous arts. This is admitted by Hatfield, who says that he takes no credit for the invention of the filter aid he used. He simply made a selection of a filter aid which was known and which he thought would be more satisfactory than the fuller’s earth named by Fenton in his specification, which also specifically recommends other materials acting in a similar manner. Hatfield, in his specification, says that a preferred type of filter aid is described in British patents identified by numbers, and “hereinbefore mentioned,” referring presumably to the “finely divided porous cellular silica” previously specified. In publications antedating the Fenton application filter aids were exhaustively discussed and defined as “substances that facilitate the removal of suspended matter in filtration processes.” Among them, “Filtercel” is specified as “made from a porous and cellular silicious mineral found in California.” This would seem to fit the filte'r aid prescribed by Hatfield. Filter-cel, Super-cel, and Hyflo-Supercel, are all diatomaceous earths of different degrees of porosity and have been widely known and used as aids to filtration.
“In determining whether device covered by patent involves patentable invention or merely exercise of ordinary mechanical skill, patentee is conclusively presumed to be thoroughly familiar with existing state of the art,” and “the transfer of a device from one art to another does not amount to invention, where it performs the same function in both,1 without any change in form to adapt it to the new use.” Fezzey v. Bemis Bro. Bag Co. (C.C.A.8) 1 F.(2d) 116, 117; Torrey v. Hancock (C.C.A. 8) 184 F. 61. These principles are as applicable to a process as to an apparatus patent.
“Th.e mere use of known equivalents for some of the elements of prior structures; the substitution for one material of another, known to possess the same qualities, .though not in the sanie degree, arid the mere carrying forward or more extended application of the original idea, involving a change only in form, proportions, or degree, and resulting in the doing of the same work in the same way and by substantially the same means, are not patentable, even though better results are secured.” Sloan Filter Co. v. Portland Gold Mining Co. (C.C.A.) 139 F. 23; Western Willite Co. v. Trinidad Asphalt Mfg. Co. (C.C.A.8) 16 F.(2d) 446.
The Fenton patent was not before the Examiner of the Hatfield application as a. reference. For this reason the presumption attending the issue of the latter patent is further weakened. Elliott & Co. v. Youngstown Car Mfg. Co. (C.C.A.3) 181 F. 345, 349; Fezzey v. Bemis Bro. Bag Co. (C.C.A.8) 1 F.(2d) 116, 117. We concur in the conclusion of the trial court that the Hatfield patent and the Hatfield and Alliott patent have not been infringed by appellees, and that all the claims in suit of both patents are invalid as anticipated and involving no invention over the prior art. We are further of opinion that, as found by the trial court, if these claims of the Fenton patent are construed so broadly as to cover the processes used by the appellee Cleaner Company, or recommended by the intervener Filtration Products Company, they likewise are invalid as not involving invention over the prior art. The intervener has recommended to this coappellee to be added in the washer, as filter aids, “Hyflo-Supercel,” wfpch is a diatomaceous earth, and hexalin, which is an alcohol; and Enterprise Cleaning Company has used, at times, in addition to these, “Morgan Sweetener,” which is fuller’s earth. In no case have these filter aids been added in any step of the process except in the washer. Furthermore, as found by the trial court: “Between May, 1921, and July 11, 1921, United Filters Company installed at the plant of Unique Cleaners & Dyers at Chicago, Illinois, a Sweetland filter, and a commercial demonstration of cleaning clothes was made in which the cleaning fluid was withdrawn from the washer, passed through the filter, and returned to the washer, and a filter aid known as ‘Super-Cel,’ which is a diatomaceous earth, was added to the washer. This process was used commercially for cleaning clothes for a period of about three or four weeks. At the time of this demonstration, Fuller’s earth, instead of ‘Filter-Cel,’ was also used in the washer with the cleaning fluid, but on account of plugging up the filter, Fuller’s earth was not used to any material extent. This demonstration was not a secret one.”
This constituted a public prior use of the process used by the appellee cleaning company which is charged with infringement.
Finally, we think the claims of appellant are foreclosed by the same principle Fenton invoked to procure the allowance of claims 1 and 11 of the patent in suit over the rejection by the Examiner. Conceding that the Traube process had four steps, and insisting that his process had five, Fenton contended that a process which has four steps is not a proper anticipation of one which has five. On appeal, as we have seen, the board sustained him on the ground that the Traube specification contained no reference to a possible agitation or agitation means, “an important step of appellant’s process.” Here the situation is transposed. The step that is absent from the alleged infringing process is this same agitating tank or its equivalent. It is a familiar principle in patent law that what will not anticipate will not infringe.
Where a feature is described in the specification and declared to be an essential feature of the invention, and made an element in the claims, the patentee (or assignee) “is not now at liberty to say that it is immaterial, or that a device which dispenses with it is an infringement, though it accomplish the same purpose in, perhaps, an equally effective manner.” Wright v. Yuengling, 155 U.S. 47, 52, 15 S.Ct. 1, 3, 39 L.Ed. 64.
It may be, as claimed, that appellant’s processes accomplish even a better result than that of the defendant cleaning company. If so, that should be its sufficient appeal to patronage. It follows that the decree of the District Court is in ail things 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_casetyp1_7-2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Kenneth L. DUVAL, and Cheryl Duval, on behalf of themselves and all other Nebraska residents similarly situated, Jerry K. Mason and Linda L. Mason, Appellees, v. MIDWEST AUTO CITY, INC., a corporation, Appellant, Dave Studna, Individually, Dave Studna d/b/a E & J Motor Sales, American Truck Sales, Global Tank Trailer Sales, and D. Studna Auto Sales, Ervin Delp, Individually, Appellant, Midwest Auto City, Inc., and Ervin Delp d/b/a Tecumseh Motors and Bernard Flaherty.
No. 77-1910.
United States Court of Appeals, Eighth Circuit.
Submitted April 12, 1978.
Decided June 12, 1978.
Herbert J. Friedman, Lincoln, Neb., on briefs for appellant.
Alan L. Plessman, Lincoln, Neb., on brief for appellees.
Before BRIGHT and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.
The Honorable TALBOT SMITH, Senior United States District Judge for the Eastern District of Michigan, sitting by designation.
ROSS, Circuit Judge.
Midwest Auto City, Inc. (Midwest) sells automobiles in Lincoln, Nebraska. In 1975 Midwest sold to each of the plaintiffs, the Duvals and the Masons, a used car which had had its odometer rolled back to give the impression that the car was a low-mileage vehicle when in fact its true mileage was much higher. Alleging that they had been victimized by conduct made unlawful under Title IV of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1981 et seq., plaintiffs commenced this suit. They sought to recover treble damages together with the costs of the action and an award of attorney fees, all as provided in 15 U.S.C. § 1989.
Following a bench trial the district court entered findings of fact and conclusions of law holding the defendants liable to both plaintiffs. A hearing was later held to determine the amount of attorney fees and costs, and an award was entered.
Plaintiffs’ complaint had named as defendants, in addition to Midwest, several other individuals and entities, including Midwest’s president Ervin Delp; only Midwest and Delp have appealed. Together they assert that the trial judge (1) erred in failing to grant judgment of dismissal at the close of the plaintiffs’ case, (2) erred in certain of his findings of fact and conclusions of law, and (3) abused his discretion in making the award of attorney fees. We affirm the judgment of the district court.
The facts of the case are fully and accurately set out in the district court’s reported opinion and will be reiterated here only where necessary to discuss the issues presented by this appeal.
I.
During their case in chief, plaintiffs introduced evidence tending to show that Midwest and Delp were part of a scheme whereby Midwest would buy high-mileage vehicles with low-mileage odometer readings from a car dealer in Kansas. Midwest in turn would resell these cars as low-mileage vehicles. The district court described the workings of this arrangement as follows:
Two paths predominated. One would begin with the purchase of a car in Kansas, the certificate of title showing high mileage, whereupon the car would be sent to Bennie Motors in Missouri and titled there, where the state law does not require a mileage certification, and then the car would be transported to Nebraska for sale. *' * * The other path consisted of the purchase of an automobile in Kansas and sending the ear to Nebraska for sale with a copy of the certificate of title sufficiently mutilated by erasure or ink smudge to render the high-mileage odometer reading illegible, thus obscuring to a potential purchaser the fact that the odometer itself had been turned back.
Duval v. Midwest Auto City, Inc., 425 F.Supp. 1381, 1385 (D.Neb.1977).
At the close of the plaintiffs’ case, defendants moved for involuntary dismissal under Fed.R.Civ.P. 41(b) on the ground that the plaintiffs’ evidence was insufficient to show a right to relief. Ruling on this motion was reserved and defendants proceeded to their proof. On áppeal, defendants argue essentially that liability could be established against Midwest and Delp only by considering evidence of the market value of the various automobiles as high-mileage and as low-mileage cars. Only by correlating these values with the prices actually paid by Midwest, and the prices actually charged on resale, could it be determined whether Midwest was a participant in, or itself a victim of, the alleged scheme. Evidence of market value was introduced only during the defendants’ presentation. Thus, defendants argue, the district court erred in failing to grant their motion for dismissal. This argument is stated in defendants’ brief as follows:
The trial court forced the defendants to proceed with their case without ruling on the motion to dismiss and then allowed the plaintiffs to bootstrap their faulty case with evidence adduced by the defendants. The court should not have permitted this and should have dismissed the plaintiffs’ case pursuant to the motion of the defendants.
Under the circumstances here presented, defendants are foreclosed from raising any issue concerning the sufficiency of the evidence as it stood at the close of plaintiffs’ case. If a defendant, after moving for involuntary dismissal at the close of the plaintiff’s case, introduces evidence in his own behalf, his right to a judgment of dismissal is thereby waived. See, e. g., Wealden Corp. v. Schwey, 482 F.2d 550, 551-52 (5th Cir. 1973); A. & N. Club v. Great American Insurance Co., 404 F.2d 100, 103-04 (6th Cir. 1968); 9 Wright & Miller, Federal Practice & Procedure § 2371, at 221 (1971). In such situations the sufficiency of the evidence is tested on appeal by viewing the entire record, reversal being warranted only if the district court’s findings are clearly erroneous.
This conclusion is not altered by the fact that the trial judge reserved ruling on the motion when made. Rule 41(b) expressly authorizes the ruling to be so reserved. The judge did not thereby “force” defendants to do anything. “If defendants wished to challenge this decision, their avenue for doing so was to refuse to offer their evidence, accept a judgment for plaintiffs, and appeal it on the ground that plaintiffs’ evidence was insufficient.” Wealden Corp. v. Schwey, supra, 482 F.2d at 552.
II.
On the issue of liability the district court concluded that both Midwest and Delp had violated 15 U.S.C. § 1986 by conspiring with the other named defendants to violate other sections of the Act, including 15 U.S.C. § 1984, which provides:
No person shall disconnect, reset, or alter or cause to be disconnected, reset, or altered, the odometer of any motor vehicle with intent to change the number of miles indicated thereon.
Finding sufficient evidence to conclude that Midwest and Delp were part of a conspiracy to violate this section, and that the vehicles of both plaintiffs fell within the ambit of the conspiracy, the judgment of the district court is, on this basis, affirmed.
As an additional basis of liability the district court found that Delp violated 15 U.S.C. § 1988, which states in pertinent part:
(a) Not later than 90 days after October 20, 1972, the Secretary [of Transportation] shall prescribe rules requiring any transferor to give the following written disclosure to the transferee in connection with the transfer of ownership of a motor vehicle:
(1) Disclosure of the cumulative mileage registered on the odometer.
(2) Disclosure that the actual mileage is unknown, if the odometer reading is known to the transferor to be different from the number of miles the vehicle has actually traveled.
The district court found that Delp violated this section by failing to furnish the plaintiffs with the required statement disclosing that the true mileage of the vehicles was unknown. We disagree with this holding of the district court. As the above-quoted statutory language makes plain, liability is imposed upon a transferor who fails to make the required disclosure to a transferee “in connection with the transfer of ownership of a motor vehicle.” In the implementing rules prescribed by the Secretary of Transportation, “transferor” is defined as “any person who transfers his ownership in a motor vehicle.” 49 C.F.R. § 580.3 (emphasis added). No liability could attach to Delp under this section since, with respect to each plaintiff, the owner of the vehicle, and thus its transferor, was Midwest, not Delp. See Romans v. Swets Motors, Inc., 428 F.Supp. 106, 107-08 (E.D.Wis. 1977) (corporate manager not a transferor); Coulbourne v. Rollins Auto Leasing Corp., 392 F.Supp. 1198, 1199-1200 (D.Del.1975) (corporate sales agent not a transferor).
III.
Following trial, a separate hearing was held to determine the amount of costs and reasonable attorney fees as provided for in 15 U.S.C. § 1989(a) of the Act. Upon consideration of the evidence presented and the briefs of counsel, Judge Urbom awarded plaintiffs attorney fees in the amount of $14,205.65. In making this award the court applied the guidelines recommended in the American Bar Association’s Code of Professional Responsibility, Disciplinary Rule 2-106. Those guidelines have frequently been approved by this court as a standard for determining reasonable attorney fees.
On appeal defendants concede the appropriateness of the factors considered by Judge Urbom and likewise agree that this court should accept the district court’s judgment except upon a showing of an abuse of discretion. Arguing that such an abuse occurred in this case, defendants assert (1) that the Duvals were not awarded damages and such fact should have reduced the amount of attorney fees, and (2) that the award is greatly in excess of the amount of damages and is, for that reason, patently unreasonable. We reject both arguments.
A.
Upon finding that the defendants had violated the Act in connection with the sale of the Duval automobile, Judge Urbom concluded that the Duvals were entitled to recover as damages the difference between the amount they had paid for the car and the fair market retail value of the same car with the number of miles it had actually traveled. This amount was determined to be $247 which, if tripled, is less than the $1500 minimum provided in 15 U.S.C. § 1989(a)(1). Therefore, the court determined that the Duvals were entitled to recover $1500. However, as a result of an earlier settlement between themselves and another defendant, the Duvals had actually received $2500. Because this amount exceeded the total amount of recovery, the court concluded that the Duvals were entitled to no more, except attorney fees and costs.
Under the circumstances of this case, we conclude that the above-described settlement does not require a reduction in the total amount of attorney fees awarded. Following the settlement the case proceeded to trial against the remaining defendants on the claims of both the Duvals and the Masons. Violations were proved against all defendants and their individual liability to each plaintiff thereby established. The extent of the preparation required to establish this liability was commented upon by Judge Urbom as follows:
Over two hundred separate automobile transactions between the parties were investigated in detail by the plaintiffs’ counsel, although many less than that were detailed at the trial. Nonetheless, the fact is that the patterns developed by extensive documentation of similar automobile transactions between Midwest Auto City, Inc., David Studna, and Bennie Studna formed the strongest evidence of a conspiracy between those persons and knowledge on the part of Midwest Auto City, Inc. and Ervin Delp that the odometers of the plaintiffs’ automobiles had been altered. * * *
It cannot be doubted that massive investigation preparatory to the trial was necessary if any reasonable likelihood of success was to be realized.
We agree with the district court’s assessment of the work required of plaintiffs’ counsel to adequately prepare this case for trial. We also conclude that the nature of the case was such that, to be successful, the same preparation was required whether there was one plaintiff or two or more. Defendants apparently made no attempt in the court below, and have made none here, to show that any significant portion of the total work product specifically attributable to the Duvals’ claim was performed by the plaintiffs’ attorney after the settlement of the Duval claim, which work would not have been performed had the case proceeded only on the Masons’ claim. Accordingly, we hold that defendants have failed to present any factual basis for concluding that the district court abused his discretion in calculating the amount of attorney fees.
B.
The combined statutory damages found by the district court to be recoverable by the two plaintiffs was $3,960; the attorney fees awarded amounted to over $14,000. Defendants insist that the disparity between these two figures makes the latter award unjust. We disagree.
By its enactment of Title IV of the Motor Vehicle Information and Cost Savings Act, Congress sought to “establish a national policy against odometer tampering and prevent consumers from being victimized by such abuses.” S.Rep. No. 92-413, 92d Cong., 2d Sess., 3 U.S.Code Cong. & Admin. News, pp. 3960, 3962 (1972). This policy is carried over in 15 U.S.C. § 1981, which states: “[i]t is therefore the purpose of this subchapter to prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of purchasers * *
To accomplish its remedial purposes the Act provides in 15 U.S.C. § 1989 for the recovery of treble damages or $1500, which ever is the greater. The same section makes recovery of reasonable attorney fees a mandatory feature of a defendant’s liability upon proof of a violation. See 15 U.S.C. § 1989(a), quoted in note 4 supra. We agree with the district court’s observation that these provisions are a response to legislative recognition that, as a practical matter, “in many situations, the amount of damage under the Act will be so small that few attorneys will pursue his client’s case with diligence unless the amount of the fee be proportionate to the actual work required, rather than the amount involved.”
In rejecting defendants’ argument, we do not minimize the significance of the amount of recovery as a factor in determining the reasonable value of an attorney’s services. That factor, however, must be placed alongside the others, and all must be placed in the context of a concrete case. We hold that where, as here, a remedial statute requires the awarding of attorney fees as an element of recovery, a showing that the trial court’s award exceeds the amount of damages does not, standing alone, amount to an abuse of discretion.
The judgment of the district court is affirmed.
. Duval v. Midwest Auto City, Inc., 425 F.Supp. 1381 (D.Neb.1977).
. Defendants do not seriously contend that the record as a whole fails to support the district court’s findings on this particular issue; indeed, defense counsel candidly acknowledged at oral argument that there never was any question that the odometers had in fact been tampered with. Instead, defendants’ primary argument was that discussed in section I of this opinion, i. e. that the evidence necessary to establish a conspiracy was introduced during the defendants’ presentation.
. In view of our holding that the district court correctly found that Delp violated 15 U.S.C. § 1986, our conclusion that he did not also violate 15 U.S.C. § 1988 does not affect the outcome of this appeal. However, the issue presents a question of first impression in this circuit concerning the scope of liability under this statute and we deem the question to be one of sufficient significance to warrant brief discussion.
. 15 U.S.C. § 1989(a) provides:
(a) Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of—
(1) three times the amount of actual damages sustained or $1,500, whichever is the greater; and
(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.
. DR 2-106(B) states in part:
Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
. A detailed analysis of the factors listed in DR 2-106 was articulated by the court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). That court’s discussion has been cited with approval in this circuit on a number of occasions. See, e. g., Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 884 (8th Cir.), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 176 (1977); Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506, 516 (8th Cir.), cert. denied, 434 U.S. 819, 98 S.Ct. 60, 54 L.Ed.2d 76 (1977).
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_appel1_1_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
FIBREBOARD PAPER PRODUCTS CORPORATION and Stauffer Chemical Company, Appellants, v. UNITED STATES of America, Appellee.
No. 19525.
United States Court of Appeals Ninth Circuit.
Jan. 21, 1966.
Edward E. Kallgren, Brobeck, Phleger & Harrison, San Francisco, Cal., John B. Lonergan, Allen B. Gresham, Lonergan & Jordan, San Bernardino, Cal., for appellants.
John W. Bonner, U. S. Atty., Las Vegas, Nev., Richard J. Dauber, Spec. Asst. U. S. Atty., for District of Nevada, Los Angeles, Cal., Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, Raymond N. Zagone, Attys., Dept, of Justice, Washington, D. C., for appellee.
Before CHAMBERS, HAMLIN and BROWNING, Circuit Judges.
HAMLIN, Circuit Judge.
On October 13, 1952, the United States of America, appellee herein, filed a complaint in condemnation to acquire over 6900 acres of land for military purposes in connection with Lake Mead Base, Nevada. The Fibreboard Paper Products Corporation and Stauffer Chemical Company, appellants herein, owned certain valid mining claims which were in the general vicinity of the property described in the condemnation action, but which mining claims were not acquired in said proceeding. In 1921 the predecessors of appellants constructed a road about 26 miles in length from Stauffer’s mining claims to a railroad siding. Fibreboard’s mining claims were approximately ten miles from the railroad siding. About seven miles of this access road were within the area described in the complaint in condemnation. The question first arose as to whether appellants had any compensable property interest in the access road included within the area condemned. A separate trial was had in the United States District Court for Nevada to determine this question, and that court ruled that appellants did have a compensable property interest in the access roads condemned by the United States and that such action “requires the payment of ‘just compensation’ * * * in accord with the Fifth Amendment to the Constitution of the United States.” United States v. 9,947.71 Acres of Land, 220 F.Supp. 328, 337 (D.Nev.1963). The United States took no appeal from this judgment.
A second trial was then had in the District Court before a jury to determine the amount of the compensation to which appellants were entitled. The jury rendered a verdict in favor of appellants in the sum of $168,700. It was the contention of appellants that they were entitled to interest on this amount from October 13, 1952, the date of the filing of the condemnation action, to the date of deposit. Appellee contended that interest should only be allowed from the date in 1959 when “actual expenditures were made by the defendants for a substitute facility” to the date of deposit. The United States District Court awarded interest at the “rate of 6 % per annum from January 1st, 1959, to the date of the deposit into the registry of the court of the said sum of $168,700.00, plus said interest.” Appellants timely appealed to this court “from that portion of the Judgment on the Verdict entered in this action on June 8, 1964, which allows interest on the principal sum of said Judgment from January 1, 1959, rather than from October 13, 1952.” We have jurisdiction under 28 U.S.C. § 1291.
The United States also noticed an appeal from the judgment. However, on March 29, 1965, this appeal was dismissed on motion of the appellee. There is thus before us the very narrow question of from which date interest on the judgment is to be allowed.
There is very little dispute in the record as to the relevant facts. On October 13, 1952, the same day upon which the condemnation complaint was filed, the district court on motion of the appellee signed an “Order For Delivery of Possession” which read in part as follows:
“It is this 13th day of October, 1952, adjudged that all defendants to this action and all persons in possession or control of the property described in the complaint filed herein shall surrender possession of the said property, to the extent of the estate being condemned, to plaintiff immediately; * * * ”
In the pretrial order there were contained certain stipulations of the parties, among them the following:
“(A) Date of taking: The government obtained an Order For Delivery of Possession in this case on October 13, 1952; however, the actual date upon which the government took possession has not been definitely ascertained at this time. For the purposes of this trial it is agreed that the property involved shall be valued in its condition as of October 13, 1952;
“(B) The legal description of the interest taken:
‘ * * * a legal and valid right of way in and to the road passing through the land taken as the Lake Mead Base which was “property” and which was taken by the United States in this condemnation action * *
“(C) * * *
“11. From 1939 until some time between October 13, 1952 and October 13, 1953, Schumacher and Fibreboard used the roadway between the Lovell Mine and the Lovell siding upon the Union Pacific Railroad right of way. * * * From 1949 to the period between October 13, 1952 and October 13, 1953, the use of the road made by Schumacher and Fibreboard was limited to purposes of inspection and maintenance of Lovell Mine and required annual labor on the claims at Lovell Mine. In 1959, operation of the Lovell Mine was resumed by Fibreboard and has continued to date. In 1959, Fibre-board constructed a road from the Lovell Mine to the Apex siding of the Union Pacific Railroad;
“12. Between October 13, 1952, and October 13, 1953, the United States denied to Fibreboard and West End the access to, the use of, that portion of the road herein referred to lying within the boundaries of the Lake Mead Base, as shown on the map, a copy of which was attached to such Stipulation as Exhibit ‘D’ and is made a part hereof, and physically destroyed a portion thereof, and such denial has continued to date; * * *”
The pretrial order also contained the following:
“V. The following issue of fact and no other remains to be litigated upon the trial:
“(A) The issue of the compensable interest of Fibreboard and Stauffer having been determined by order of this Court dated and filed July 19, 1963, the only issue of fact remaining to be litigated is the just compensation payable to Fibreboard and Stauffer by reason of the condemnation action.”
In Seaboard Air Line Ry. v. United States, 261 U.S. 299, 43 S.Ct. 354, 67 L. Ed. 664 (1923), the Supreme Court discussed the meaning of “just compensation” that must be paid where land is taken by the government in a condemnation action. The Court said:
“Just compensation is provided for by the Constitution. * * * The compensation to which the owner is entitled is the full and perfect equivalent of the property taken. * * * The only question here is whether payment at a subsequent date of the value of the land as of the date of taking possession is sufficient to constitute just compensation. * * * The case of United States v. Rogers et al., 255 U.S. 163, 41 Sup.Ct. 281, 65 L.Ed. 566, is a condemnation case, and it was held that the owner was entitled as a part of the just compensation to interest on the confirmed award of the commissioners from the time when the United States took possession. * * * Interest was allowed, not by virtue of state statute, but as constituting a part of the just compensation safeguarded by the Constitution. * * * Where the United States condemns and takes possession of land before ascertaining or paying compensation, the owner is not limited to the value of the property at the time of the taking; he is entitled to such addition as will produce the full equivalent of that value paid contemporaneously with the taking. Interest at a proper rate is a good measure by which to ascertain the amount so to be added.” 261 U.S. at 304-306, 43 S.Ct. at 356.
The above stated rule has been followed in later cases. United States v. Dow, 357 U.S. 17, 24, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958) (dictum); United States v. Alcea Band of Tillamooks, 341 U.S. 48, 71 S.Ct. 552, 95 L.Ed. 738 (1950) (dictum); Albrecht v. United States, 329 U.S. 599, 602, 67 S.Ct. 606, 91 L.Ed. 532 (1946) (dictum); Phelps v. United States, 274 U.S. 341, 47 S.Ct. 611, 71 L.Ed. 1083 (1927). The Ninth Circuit also applied this rule in United States v. Johns, 146 F.2d 92 (9 Cir. 1944).
The right to interest from the date of taking to the date of payment thus being established, the next question is the determination as to when was the date of taking.
As shown above, in this case an order for immediate possession of the land to be taken was obtained upon the filing of the condemnation suit on October 13, 1952. The stipulation of the parties was that from some date between October 13, 1952, and October 13, 1953, appellants were denied access to their road and a portion of the road was physically destroyed. The fact that a new road was not built until 1959 does not appear to us to be determinative of the question in issue. When the government has not filed a declaration of taking pursuant to 40 U.S.C. § 258a, the date of taking is the date upon which the government enters into possession. United States v. Dow, 357 U.S. 17, 24, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958). From a stipulation of the parties it would appear that the date of taking was at least October 13, 1953, and that interest upon the amount of the judgment should run from that date.
The government’s contention is that in this case the “taking” was a “technical taking” and for that no compensation should be due. Its reliance on the case of Marion & Rye Valley Ry. v. United States, 270 U.S. 280, 46 S.Ct. 253, 70 L.Ed. 585 (1925), is misplaced. In that case there was a claim for compensation “for the alleged taking possession and use by the United States of its railroad during the period beginning December 28, 1917, and ending June 29, 1918.” This claim was denied by the Supreme Court. However, the facts were entirely different from those in the case at bar. In that case the Supreme Court speaking of the Presidential proclamation, in reference to the possession and control of systems of transportation in the United States, said:
“He did not at any time take over the actual possession or operation of the railroad; did not at any time give any specific direction as to its management or operation; and did not at any time interfere in any way with its conduct or activities. The company retained possession and continued in the operation of its railroad throughout the period in question. The railroad was operated during the period exactly as it had been before, without change in the manner, method or purpose of operation.” 270 U.S. at 282-283, 46 S.Ct. at 255.
The government also cites cases where publicly-owned roads have been taken and where it has been held that compensation is only payable “to the extent that, as a result of such taking, it (the public body) is compelled to construct a substitute highway.” These cases are not apposite here where private property has been condemned.
That portion of the judgment of the district court which allows interest on the judgment from January 1, 1959, is reversed and the district court is directed to allow interest on the judgment at six per cent per annum from October 13, 1953, to the date of the deposit into the registry of the court of the sum of $168,700.00 plus said interest.
. State of California v. United States, 169 F.2d 914, 924 (9 Cir. 1948). E. g., United States v. Des Moines County, 148 F.2d 448, 160 A.L.R. 953 (8tli Cir.), cert. denied, 326 U.S. 743, 66 S.Ct. 56, 90 L.Ed. 444 (1945); Jefferson County v. Tennessee Valley Authority, 146 F.2d 564 (6 Cir.), cert. denied, 324 U.S. 871, 65 S.Ct. 1016, 89 L.Ed. 1425 (1945).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_state
|
56
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
SEVIER TERRACE REALTY COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 15409.
United States Court of Appeals Sixth Circuit.
Feb. 20, 1964.
George D. Webster, Washington, D. C. (Davies, Rich berg, Tydings, Landa & Duff, Washington, D. C., on the brief), for petitioner.
Robert A. Bernstein, Dept, of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, L. W. Post, Stephen B. Wolfberg, Attys., Dept, of Justice, Washington, D. C., on the brief), for respondent.
Before WEICK, Chief Judge, and PHILLIPS, Circuit Judge, and McALLISTER, Senior Circuit Judge.
PER CURIAM.
This ease involved questions concerning the taxpayer’s basis of 303 acres of land known as Mount Ida Farm and located partly within and partly without the corporate limits of Kingsport, Tennessee. A further issue was presented as to whether the taxpayer in computing its income tax may deduct, as an ordinary and necessary business expense, the fair market value of 12 lots transferred to a social and recreation center to be used only by owners or residents in the taxpayer’s subdivision rather than handling it as a capital expenditure allocable to the basis of its unsold lots.
The parties agreed that taxpayer’s basis for the 303 acres was the fair market value of an undivided one-half interest in the land on March 11, 1922 and the fair market value of the other one-half on March 1, 1913.
The evidence as to values offered in the Tax Court by the taxpayer and the Government was sharply in conflict. It was carefully considered by Judge Raum of that court in a well written opinion. He determined the values on the respective dates somewhere between the values testified to by the taxpayer’s experts and the Government’s experts. He was of the view that the values testified to by the taxpayer’s experts were unrealistic and he did not credit them. The values determined by the Tax Court were within the range of the testimony of the expert witnesses. The court further took into account values placed on the land in earlier tax returns filed by predecessors in interest of the taxpayer which we think was proper. Robertson v. Routzahn, 75 F.2d 537 (C.A. 6); Grill v. United States, 303 F.2d 922 (Ct.Cl.); Campagna v. United States, 290 F.2d 682 (C.A. 2); Marsack’s Estate v. Commissioner, 288 F.2d 533 (C.A. 7). See also Interstate Life & Accident Ins. Co. v. RKO Teleradio Pictures, Inc., 318 F.2d 73, 78 (C.A. 6), cert. denied, 375 U.S. 945, 84 S.Ct. 352.
In our opinion, the decision of the Tax Court with respect to the values of the land was supported by substantial evidence and is not clearly erroneous. We find nothing prejudicial to taxpayer in the Tax Court’s allocation of the basis.
We are also of the view that the value of the 12 lots contributed by taxpayer for a recreation center should be treated as a capital expenditure allocable to the basis of its unsold lots and is not deductible as a business expense. Country Club Estates, Inc. v. Commissioner, 22 T.C. 1283.
The decision of the Tax Court is affirmed on the opinion of Judge Raum reported in T.C. Memo. 1962 — 242.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_respondent
|
133
|
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.
O’BANNON, SECRETARY OF PUBLIC WELFARE OF PENNSYLVANIA v. TOWN COURT NURSING CENTER et al.
No. 78-1318.
Argued November 6, 1979
Decided June 23, 1980
SteveNS, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined. BlackmuN, J., filed an opinion concurring in the judgment, post, p. 790. BrenNAN, J., filed a dissenting opinion, post, p. 805. Marshall, J., took no part in the consideration or decision of the case.
Norman J. Watkins, Special Deputy Attorney General of Pennsylvania, argued the cause for petitioner. With him on the briefs was Edward G. Biester, Jr. Richard A. Allen argued the cause for the Secretary of Health, Education, and Welfare, respondent under this Court’s Rule 21 (4), in support of petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Babcock, Deputy Solicitor General Easterbrook, and William Ranter.
Nathan L. Posner argued the cause for respondents. With him on the brief were William F. Coyle, Jeffrey B. Albert, and Abraham C. Reich
Briefs of amici curiae urging affirmance were filed by Michael H. Mar cus, Gary Roberts, John L. Carroll, and Morris Dees for Jill Harris et al.; by Kalman Finkel, John E. Kirklin, and Philip M. Gassel for the Legal Aid Society of New York City et al.; and by Toby S. Edelman and Edward C. King for the National Citizens’ Coalition for Nursing Home Reform.
Mr. Justice Stevens
delivered the opinion of the Court.
The question presented is whether approximately 180 elderly residents of a nursing home operated by Town Court Nursing Center, Inc., have a constitutional right to a hearing before a state or federal agency may revoke the home’s authority to provide them with nursing care at government expense. Although we recognize that such a revocation may be harmful to some patients, we hold that they have no constitutional right to participate in the revocation proceedings.
Town Court Nursing Center, Inc. (Town Court), operates a 198-bed nursing home in Philadelphia, Pa. In April 1976 it was certified by the Department of Health, Education, and Welfare (HEW) as a “skilled nursing facility,” thereby becoming eligible to receive payments from HEW and from the Pennsylvania Department of Public Welfare (DPW), for providing nursing care services to aged, disabled, and poor persons in need of medical care. After receiving its certification, Town Court entered into formal “provider agreements” with both HEW and DPW. In those agreements HEW and DPW agreed to reimburse Town Court for a period of one year for care provided to persons eligible for Medicare or Medicaid benefits under the Social Security Act, on the condition that Town Court continue to qualify as a skilled nursing facility.
On May 17, 1977, HEW notified Town Court that it no longer met the statutory and regulatory standards for skilled nursing facilities and that, consequently, its Medicare provider agreement would not be renewed. The HEW notice stated that no payments would be made for services rendered after July 17, 1977, explained how Town Court might request reconsideration of the decertification decision, and directed it to notify Medicare beneficiaries that payments were being discontinued. Three days later DPW notified Town Court that its Medicaid provider agreement would also not be renewed.
Town Court requested HEW to reconsider its termination decision. While the request was pending, Town Court and six of its Medicaid patients filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging that both the nursing home and the patients were entitled to an evidentiary hearing on the merits of the decer-tification decision before the Medicaid payments were discontinued. The complaint alleged that termination of the payments would require Town Court to close and would cause the individual plaintiffs to suffer both a loss of benefits and “immediate and irreparable psychological and physical harm.” App. 11a.
The District Court granted a preliminary injunction against DPW and HEW, requiring payments to be continued for new patients as well as for patients already in the home and prohibiting any patient transfers until HEW acted on Town Court’s petition for reconsideration. After HEW denied that petition, the District Court dissolved the injunction and denied the plaintiffs any further relief, except that it required HEW and DPW to pay for services actually provided to patients.
Town Court and the six patients filed separate appeals from the denial of the preliminary injunction, as well as a motion, which was subsequently granted, for reinstatement of the injunction pending appeal. The Secretary of HEW cross-appealed from the portion of the District Court’s order requiring payment for services rendered after the effective date of the termination. The Secretary of DPW took no appeal and, though named as an appellee, took no position on the merits.
The United States Court of Appeals for the Third Circuit, sitting en banc, unanimously held that there was no constitutional defect in the HEW procedures that denied Town Court an evidentiary hearing until after the termination had become effective and the agency had ceased paying benefits. The Court of Appeals came to a different conclusion, however, with respect to the patients’ claim to a constitutional right to a pretermination hearing. Town Court Nursing Center, Inc. v. Beal, 586 F. 2d 280 (1978).
Relying on the reasoning of Klein v. Califano, 586 F. 2d 250 (CA3 1978) (en banc), decided the same day, a majority of the court concluded that the patients had a constitutionally protected property interest in continued residence at Town Court that gave them a right to a pretermination hearing. In Klein the court identified three Medicaid provisions — a statute giving Medicaid recipients the right to obtain services from any qualified facility, a regulation prohibiting certified facilities from transferring or discharging a patient except for certain specified reasons, and a regulation prohibiting the reduction or termination of financial assistance without a hearing — which, in its view, created a “legitimate entitlement to continued residency at the home of one’s choice absent specific cause for transfer.” Id., at 258. It then cited the general due process maxim that, whenever a governmental benefit may be withdrawn only for cause, the recipient is entitled to a hearing as to the existence of such cause. See Memphis Light, Gas & Water Division v. Craft, 436 U. S. 1, 11. Finally, it held that, since the inevitable consequence of decertifying a facility is the transfer of all its residents receiving Medicaid benefits, a decision to decertify should be treated as a decision to transfer, thus triggering the patients’ right to a hearing on the issue of whether there is adequate cause for the transfer.
Applying this reasoning in Town Court, six judges held that the patients were entitled to a pretermination hearing on the issue of whether Town Court’s Medicare and Medicaid provider agreements should be renewed. The court thus reinstated that portion of the preliminary injunction that prohibited patient transfers until after the patients had been granted a hearing and affirmed that portion that required HEW and DPW to continue paying benefits on behalf of Town Court residents. It then remanded, leaving the nature of the hearing to be accorded the patients to be determined, in the first instance, by the District Court. Three judges dissented, concluding that neither the statutes nor the regulations granted the patients any substantive interest in decertification proceedings and that they had no constitutionally protected property right in uninterrupted occupancy.
The Secretary of DPW filed a petition for certiorari, which we granted. 441 U. S. 904. We now reverse, essentially for the reasons stated by Chief Judge Seitz in his dissent.
At the outset, it is important to remember that this case does not involve the question whether HEW or DPW should, as a matter of administrative efficiency, consult the residents of a nursing home before making a final decision to decertify it. Rather, the question is whether the patients have an interest in receiving benefits for care in a particular facility that entitles them, as a matter of constitutional law, to a hearing before the Government can decertify that facility. The patients have identified two possible sources of such a right. First, they contend that the Medicaid provisions relied upon by the Court of Appeals give them a property right to remain in the home of their choice absent good cause for transfer and therefore entitle them to a hearing on whether such cause exists. Second, they argue that a transfer may have such severe physical or emotional side effects that it is tantamount to a deprivation of life or liberty, which must be preceded by a due process hearing. We find both arguments unpersuasive.
Whether viewed singly or in combination, the Medicaid provisions relied upon by the Court of Appeals do not confer a right to continued residence in the home of one’s choice. Title 42 U. S. C. § 1396a (a) (23) (1976 ed., Supp. II) gives recipients the right to choose among a range of qualified providers, without government interference. By implication, it also confers an absolute right to be free from government interference with the choice to remain in a home that continues to be qualified. But it clearly does not confer a right on a recipient to enter an unqualified home and demand a hearing to certify it, nor does it confer a right on a recipient to continue to receive benefits for care in a home that has been decertified. Second, although the regulations do protect patients by limiting the circumstances under which a home may transfer or discharge a Medicaid recipient, they do not purport to limit the Government’s right to make a transfer necessary by decertifying a facility. Finally, since decerti-fication does not reduce or terminate a patient's financial assistance, but merely requires him to use it for care at a different facility, regulations granting recipients the right to a hearing prior to a reduction in financial benefits are irrelevant.
In holding that these provisions create a substantive right to remain in the home of one's choice absent specific cause for transfer, the Court of Appeals failed to give proper weight to the contours of the right conferred by the statutes and regulations. As indicated above, while a patient has a right to continued benefits to pay for care in the qualified institution of his choice, he has no enforceable expectation of continued benefits to pay for care in an institution that has been determined to be unqualified.
The Court of Appeals also erred in treating the Government’s decision to decertify Town Court as if it were equivalent in every respect to a decision to transfer an individual patient. Although decertification will inevitably necessitate the transfer of all those patients who remain dependent on Medicaid benefits, it is not the same for purposes of due process analysis as a decision to transfer a particular patient or to deny him financial benefits, based on his individual needs or financial situation.
In the Medicare and the Medicaid Programs the Government has provided needy patients with both direct benefits and indirect benefits. The direct benefits are essentially financial in character; the Government pays for certain medical services and provides procedures to determine whether and how much money should be paid for patient care. The net effect of these direct benefits is to give the patients an opportunity to obtain medical services from providers of their choice that is comparable, if not exactly equal, to the opportunity available to persons who are financially independent. The Government cannot withdraw these direct benefits without giving the patients notice and an opportunity for a hearing on the issue of their eligibility for benefits.
This case does not involve the withdrawal of direct benefits. Rather, it involves the Government’s attempt to confer an indirect benefit on Medicaid patients by imposing and enforcing minimum standards of care on facilities like Town Court. When enforcement of those standards requires decertification of a facility, there may be an immediate, adverse impact on some residents. But surely that impact, which is an indirect and incidental result of the Government’s enforcement action, does not amount to a deprivation of any interest in life, liberty, or property.
Medicaid patients who are forced to move because their nursing home has been decertified are in no different position for purposes of due process analysis than financially independent residents of a nursing home who are forced to move because the home’s state license has been revoked. Both groups of patients are indirect beneficiaries of government programs designed to guarantee a minimum standard of care for patients as a class. Both may be injured by the closing of a home due to revocation of its state license or its decertification as a Medicaid provider. Thus, whether they are private patients or Medicaid patients, some may have difficulty locating other homes they consider suitable or may suffer both emotional and physical harm as a result of the disruption associated with their move. Yet none of these patients would lose the ability to finance his or her continued care in a properly licensed or certified institution-. And, while they might have a claim against the nursing home for damages, none would have any claim against the responsible governmental authorities for the deprivation of an interest in life, liberty, or property. Their position under these circumstances would be comparable to that of members of a family who have been dependent on an errant father; they may suffer serious trauma if he is deprived of his liberty or property as a consequence of criminal proceedings, but surely they have no constitutional right to participate in his trial or sentencing procedures.
The simple distinction between government action that directly affects a citizen’s legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally, provides a sufficient answer to all of the cases on which the patients rely in this Court. Thus, Memphis Light, Gas & Water Division v. Craft, 436 U. S. 1, involved the direct relationship between a publicly owned utility and its customers; the utility had provided its customers with a legal right to receive continued service as long as they paid their bills. We held that under these circumstances the utility’s customers had a constitutional right to a hearing on a disputed bill before their service could be discontinued. But nothing in that case implies that if a public utility found it necessary to cut off service to a nursing home because of delinquent payments, it would be required to offer patients in thé home an opportunity to be heard on the merits of the credit dispute. This would be true even if the termination of utility service required the nursing home to close and caused serious inconvenience or harm to patients who would therefore have to move. As in this case, such patients might have rights against the home, and might also have direct relationships with the utility concerning their own domestic service, but they would have no constitutional right to interject themselves into the dispute between the public utility and the home.
Over a century ago this Court recognized the principle that the due process provision of the Fifth Amendment does not apply to the indirect adverse effects of governmental action. Thus, in the Legal Tender Cases, 12 Wall. 457, 551, the Court stated:
“That provision has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals.”
More recently, in Martinez v. California, 444 U. S. 277, we rejected the argument made by the parents of a girl murdered by a parolee that a California statute granting absolute immunity to the parole board for its release decisions deprived their daughter of her life without due process of law:
“A legislative decision that has an incremental impact on the probability that death will result in any given situation — such as setting the speed limit at 55-miles-per-hour instead of 45 — cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander.” Id., at 281.
Similarly, the fact that the decertification of a home may lead to severe hardship for some of its elderly residents does not turn the decertification into a governmental decision to impose that harm.
Whatever legal rights these patients may have against Town Court for failing to maintain its status as a qualified skilled nursing home — and we express no opinion on that subject — we hold that the enforcement by HEW and DPW of their valid regulations did not directly affect the patients’ legal rights or deprive them of any constitutionally protected interest in life, liberty, or property.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Marshall took no part in the consideration or decision of this case.
The certification in 1976 was Town Court’s second; it had first been certified in 1967. It was decertified in 1974 as a result of substantial noncompliance with both state and federal requirements.
The Medicare Program, see 42 U. S. C. § 1395 et seq., which is primarily for the benefit of the aged and the disabled, is financed and administered entirely by the Federal Government (HEW); the Medicaid Program, see 42 U. S. C. § 1396 et seq., which is primarily designed for the poor, is a cooperative federal-state program.
HEW based its determination on a survey conducted by DPW, which recommended that the home be decertified. In its notice to Town Court HEW stated in part:
“In order to participate in the Medicare Program, a skilled nursing facility must meet the statutory requirements contained in section 1861 (j) of the Act, 42 USC 1395 x (j), as well as all other health and safety requirements established by the Secretary in subpart J, part 405, title 20 of the Code of Federal Regulations. A participating skilled nursing facility is required to be in compliance with all of the eighteen conditions of participation for such facilities contained in subpart J.
“On May 8-11, 1977, the Pennsylvania Department of Health performed a survey of your facility. That survey found that your facility does not comply with seven of the eighteen conditions of participation. The seven conditions not being complied with are:
“II. Governing Body and Management (405.1121)
“HI. Medical Direction (405.1122)
“IV. Physical Services (405.1123)
“V. Nursing Services (405.1124)
“VIII. Pharmaceutical Services (405.1127)
“XIII. Medical Records (405.1132)
“XV. Physical Environment (405.1134)
“Your facility’s failure to comply with these conditions of participation precludes renewal of your agreement. Renewal is also precluded by the fact that your facility has failed to maintain compliance with numerous standards which had previously been determined to be met. Please refer to 20 CFR 405.1908 (d).” App. 295a-296a.
The state agency’s letter read in part:
“Because the Medicare Program has terminated your participation, the Department of Public Welfare has no alternative but to likewise ter-mínate your participation under the Medical Assistance Program. The Federal regulations, 45 C. F. R. § 249.33 (a) (9), require that a State medical assistance plan must:
“ ‘Provide that in the case of skilled nursing facilities certified under the provisions of title XVIII of the Social Security Act, the term of a provider agreement shall be subject to the same terms and conditions and coterminous with the period of approval of eligibility specified by the Secretary pursuant to that title, and upon notification that an agreement with a facility under title XVIII of the Act has been terminated or cancelled, the single State agency will take appropriate action to terminate the facility’s participation under the plan. A facility whose agreement has been can-
celled or otherwise terminated may not be issued another agreement until the reasons which cause the cancellation or termination have been removed and reasonable assurance provided the survey agency that they will not recur.’ (emphasis supplied)
“Because of the requirements of HEW, your facility must be terminated from participation in the Medical Assistance Program effective June 18, 1977.” Id., at 291ar-292a.
At the time the suit was filed, no Town Court residents were Medicare recipients. However, Town Court did have a Medicare provider agreement with HEW, the nonrenewal of which automatically triggered the nonrenewal of its Medicaid agreement. See n. 4, supra.
Although the plaintiffs filed their action on behalf of a class of all Medicaid recipients in the home, the District Court never certified the class. Thus, the action has proceeded throughout the Court of Appeals and in this Court as an individual action on behalf of the six named plaintiffs.
Relying on this Court’s decision in Mathews v. Eldridge, 424 U. S. 319, the Court of Appeals held that Town Court’s property interests were sufficiently protected by informal pretermination procedures and by the opportunity for an administrative hearing and federal-court review after benefits had been terminated:
“As was true in Eldridge, the decision not to renew a provider agreement is an easily documented, sharply focused decision in which issues of credibility and veracity play little role. It is based in most cases upon routine, standard, unbiased reports by health care professionals. Those professionals evaluate the provider in light of well-defined criteria that were developed in the administrative rule-making process. Written submissions are adequate to allow the provider to present his case. Given the extensive documentation that the provider is able to submit in response to the findings of the survey teams, the provider is unlikely to need an eviden-tiary hearing in order to present his position more effectively. In any event, there is ample opportunity to expand orally upon written submissions during the exit interview or in discussions during the survey itself. There is opportunity to submit additional evidence after notice of deficiencies is given, and the evidence upon which the recommendation of the survey team is based is disclosed fully to the provider. Moreover, the criteria used to evaluate the provider are well known in advance to the provider, and compliance is readily proved or disproved by written submission. Finally, review by an administrative law judge, by the Appeals Council of HEW, and ultimately by the federal courts; insures that the decision of the Secretary will be thoroughly examined before becoming final.
“As stated in Eldridge, the public interest in preserving scarce financial and administrative resources is strong. Given the large number of providers participating in Medicare and the frequent surveys that are required, we believe that the costs of providing pre-termination hearings would be substantial. Further, the public has a strong interest in insuring that elderly and infirm nursing home patients are not required to stay in noncomplying homes longer than is necessary to assure that the provider had adequate notice and opportunity to respond to charges of deficiencies.” Town Court Nursing Center, Inc. v. Beal, 586 F. 2d 266, 277-278 (1978). Town Court did not seek further review of this determination.
At the time the litigation began Frank S. Beal was the Pennsylvania Secretary of Public Welfare. He has since been replaced in that position by Helen B. O’Bannon, the petitioner in this Court.
Title 42 U. S. C. § 1396a (a) (23) (1976 ed., Supp. II) provides, in relevant part:
“[A]ny individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services....”
The same “free choice of providers” is also guaranteed by 42 CFR § 431.51 (1979).
Title 42 CFR §405.1121 (k) (4) (1979) requires skilled nursing facilities that
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_lcdisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
NORTHEAST BANCORP, INC., et al. v. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM et al.
No. 84-363.
Argued April 15, 1985
Decided June 10, 1985
Rehnquist, J., delivered the opinion of the Court, in which all other Members joined except Powell, J., who took no part in the decision of the case. O’Connor, J., filed a concurring opinion, post, p. 178.
Stephen M. Shapiro argued the cause for petitioners. With him on the brief for petitioner Citicorp were Ira M. Millstein, Robert L. Stem, James W. Quinn, and Jay N. Fastow. George D. Reycraft, John Boyer, Jeffrey Q. Smith, Gregory Scott Mertz, and Joseph Polizzotto filed a brief for petitioners Northeast Bancorp, Inc., et al. The named attorneys filed a joint reply brief and supplemental memorandum for all petitioners.
Solicitor General Lee argued the cause for the federal respondent. With him on the brief were Acting Assistant Attorney General Willard, Deputy Solicitor General Wallace, Anthony J. Steinmeyer, and Michael Kimmel. Laurence H. Tribe argued the cause for respondents Bank of New England Corp. et al. With him on the briefs were Bertram M. Kantor, Michael H. Byowitz, Mark A. Weiss, Stuart C. Stock, Wilmot T. Pope, and Douglas M. Kraus. Francis X. Bellotti, Attorney General, Jamie W. Katz, Assistant Attorney General, and Thomas R. Kiley, First Assistant Attorney General, filed a brief for respondent Commonwealth of Massachusetts. Joseph I. Lieberman, Attorney General, Elliot F. Gerson, Deputy Attorney General, and John G. Haines and Jane D. Comerford, Assistant Attorneys General, filed a brief for respondents State of Connecticut et al.
Briefs of amici curiae urging reversal were filed for the State of New York by Robert Abrams, Attorney General, Robert Hermann, Solicitor General, R. Scott Greathead, First Assistant Attorney General, and Judith T. Kramer and Howard L. Zwickel, Assistant Attorneys General; for Chase Manhattan Corp. by Joseph A. Calif ano, Jr., and Kent T. Stauffer; for the David F. Bolger Revocable Trust by William A. Harvey and Edward S. Ellers; for the New York State Bankers Association by John Leferovich, Jr.; for Senator Alphonse D’Amato et al. by J. Robert Lunney; and for Frank L. Morsani by Dewey R. Villareal, Jr.
Briefs of amici curiae urging affirmance were filed for the State of Georgia by Michael J. Bowers, Attorney General, James P. Googe, Jr., Executive Assistant Attorney General, H. Perry Michael, First Assistant Attorney General, Verley J. Spivey, Senior Assistant Attorney General, and Grace E. Evans, Assistant Attorney General; for Bank of New York Co., Inc., by John L. Warden; for the Conference of State Bank Supervisors by Erwin N. Griswold, James F. Bell, and Arthur E. Wilmarth, Jr.; for the Council of State Governments et al. by Joyce Holmes Benjamin and Vicki C. Jackson; for Fleet Financial Group, Inc., by Allan B. Taylor, J. Bruce Boisture, Robert M. Taylor III, and Edward W. Dence, Jr.; and for Bob Graham, Governor of Florida, et al. by J. Thomas Cardwell, Sydney H. McKenzie III, S. Craig Kiser, and Carl B. Morstadt.
Robert F. Mullen filed a brief for the New York Clearing House Association as amicus curiae.
Justice Rehnquist
delivered the opinion of the Court.
Respondents Bank of New England Corporation (BNE), Hartford National Corporation (HNC), and Bank of Boston Corporation (BBC) are bank holding companies which applied to the Federal Reserve Board to obtain approval for the acquisition of banks or bank holding companies in New England States other than the ones in which they are principally located. Petitioners Northeast Bancorp, Inc., Union Trust Company, and Citicorp opposed these proposed acquisitions in proceedings before the Board. The Board approved the acquisitions, and the Court of Appeals for the Second Circuit affirmed the orders of the Board. Petitioners sought certio-rari, contending that the acquisitions were not authorized by the Bank Holding Company Act of 1956, 70 Stat. 133, as amended, 12 U. S. C. §1841 et seq., and that, if they were authorized by that Act, the state statutes which permitted the acquisitions in each case violated the Commerce Clause and the Compact Clause of the United States Constitution. We granted certiorari because of the importance of these issues, 469 U. S. 810, and we now affirm.
The Bank Holding Company Act (BHCA) regulates the acquisition of state and national banks by bank holding companies. The Act generally defines a bank as any institution organized under state or federal law which “(1) accepts deposits that the depositor has a legal right to withdraw on demand, and (2) engages in the business of making commercial loans.” 12 U. S. C. § 1841(c). The Act defines a bank holding company as any corporation, partnership, business trust, association, or similar organization that owns or has control over a bank or another bank holding company. §§ 1841(a)(1), (b); see § 1841(a)(5). Before a company may become a bank holding company, or a bank holding company may acquire a bank or substantially all of the assets of a bank, the Act requires it to obtain the approval of the Federal Reserve Board. § 1842.
The Board will evaluate the proposed transaction for anti-competitive effects, financial and managerial resources, community needs, and the like. § 1842(c). In addition, § 3(d) of the Act, 12 U. S. C. § 1842(d), known as “the Douglas Amendment,” prohibits the Board from approving an application of a bank holding company or bank located in one State to acquire a bank located in another State, or substantially all of its assets, unless the acquisition “is specifically authorized by the statute laws of the State in which such bank is located, by language to that effect and not merely by implication.” Pursuant to the Douglas Amendment, a number of States recently have enacted statutes which selectively authorize interstate bank acquisitions on a regional basis. This case requires us to consider the validity of these statutes.
From 1956 to 1972, the Douglas Amendment had the effect of completely barring interstate bank acquisitions because no State had enacted the requisite authorizing statute. Beginning in 1972, several States passed statutes permitting such acquisitions in limited circumstances or for specialized purposes. For example, Iowa passed a grandfathéring statute which-had the effect of permitting the only out-of-state bank holding company owning an Iowa bank to maintain and expand its in-state banking activities, Iowa Code § 524.1805 (1983); see Iowa Independent Bankers v. Board of Gover nors, 167 U. S. App. D. C. 286, 511 F. 2d 1288, cert. denied, 423 U. S. 875 (1975); Washington authorized out-of-state purchasers to acquire failing local banks, Wash. Rev. Code §30.04.230(4)(a) (Supp. 1985); and Delaware allowed out-of-state bank holding companies to set up special purpose banks, such as credit card operations, in Delaware so long as they do not compete in other respects with locally controlled full-service banks, Del. Code Ann., Tit. 5, §801 et seq. (Supp. 1984).
Beginning with Massachusetts in December 1982, several States have enacted statutes lifting the Douglas Amendment ban on interstate acquisitions on a reciprocal basis within their geographic regions. The Massachusetts Act specifically provides that an out-of-state bank holding company with its principal place of business in one of the other New England States (Connecticut, Maine, New Hampshire, Rhode Island, and Vermont), which is not directly or indirectly controlled by another corporation with its principal place of business located outside of New England, may establish or acquire a Massachusetts-based bank or bank holding company, provided that the other New England State accords equivalent reciprocal privileges to Massachusetts banking organizations. Mass. Gen. Laws Ann., ch. 167A, §2 (West 1984). In June 1983, Connecticut followed suit by adopting a substantially similar statute. 1983 Conn. Pub. Acts 83-411.
The other New England States have taken different courses or have not acted. Rhode Island, in May 1983, authorized acquisition of local banks by out-of-state bank holding companies on a reciprocal basis similarly limited to the New England region, but this geographic limitation will expire on June 30, 1986, after which the authorization will extend nationwide subject only to the reciprocity requirement. R. I. Gen. Laws § 19-30-1 et seq. (Supp. 1984). Since February 1984, Maine has permitted banking organizations from all other States to acquire local banks without any reciprocity requirement. Me. Rev. Stat. Ann., Tit. 9-B, §1013 (Supp. 1984-1985). At the other extreme, New Hampshire and Vermont have not enacted any statute releasing the Douglas Amendment’s ban on interstate bank acquisitions.
One predictable effect of the regionally restrictive statutes will apparently be to allow the growth of regional multistate bank holding companies which can compete with the established banking giants in New York, California, Illinois, and Texas. See 740 F. 2d 203, 209, and n. 16 (1984). The Massachusetts and Connecticut statutes have prompted at least 15 other States to consider legislation which, according to the Federal Reserve Board, would establish interstate banking regions in all parts of the country. 70 Fed. Res. Bull. 374, 375-376 (1984). At least seven of these States have already enacted the necessary statutes.
Two months after Connecticut passed its statute, BNE applied to the Board for approval of its merger with respondent CBT Corporation (CBT), a Connecticut bank holding company, and thereby to acquire indirectly the Connecticut Bank and Trust Company, N. A., of Hartford, Connecticut. Soon thereafter HNC applied to the Board for approval of the acquisition of Arltru Bank Corporation (Arltru), a Massachusetts bank holding company which owns the Arlington Trust Company, a bank located in Lawrence, Massachusetts. Finally BBC applied to the Board for approval of the acquisition of the successor by merger to Colonial Bancorp, Inc., a Connecticut bank holding company, by which it would acquire Colonial Bank of Waterbury, Connecticut.
Citicorp offers financial services to consumers and businesses nationally through its bank and nonbank subsidiaries. In response to the Board’s invitation for comments from interested persons on these three proposed acquisitions, Citicorp submitted comments opposing all three of them. Northeast owns petitioner Union Trust Company, a Connecticut bank that competes directly with banks owned by CBT, HNC, and Colonial. In addition, Bank of New York Corporation has agreed to acquire Northeast if Connecticut or the United States enacts the necessary enabling legislation. Northeast and Union Trust submitted comments opposing BNE’s application to acquire CBT.
The petitioners challenged the applications in part on the ground that the Douglas Amendment did not authorize them, and in part on the grounds that the Massachusetts and Connecticut statutes, by discriminating against non-New England bank holding companies, violated the Commerce, Compact, and Equal Protection Clauses of the Federal Constitution. They claimed, therefore, that the proposed interstate acquisitions were not authorized by valid state statutes as required by the Douglas Amendment. The Board rejected these arguments. It first determined that the BNE-CBT and BBC-Colonial acquisitions were specifically authorized by the Connecticut statute and the HNC-Arltru acquisition was specifically authorized by the Massachusetts statute, and therefore that the Douglas Amendment would not prevent the Board from approving any of the three proposed transactions.
The Board then rejected the constitutional challenge to the two state statutes. In doing so, it noted that it would hold a state statute unconstitutional only if there was “clear and unequivocal evidence” of its unconstitutionality. 70 Fed. Res. Bull. 353, 354 (1984); id., at 376; 70 Fed. Res. Bull. 524, 525-526 (1984). While stating that “the issue is not free from doubt,” it concluded that this standard had not been met. 70 Fed. Res. Bull, at 376-377. Interpreting the statutory language and the legislative history of the Douglas Amendment, it determined that “the Douglas Amendment should be read as a renunciation of federal interest in regulating the interstate acquisition of banks by bank holding companies.” Id., at 380. This renunciation of federal interest eliminated any objection to the statutes under the Compact Clause or dormant Commerce Clause.
The Board also found nothing in the history of the Amendment to suggest that “the states were to be permitted only to choose between not allowing out-of-state bank holding companies to enter, and allowing completely free entry.” Id., at 386. The Board disposed of the equal protection challenge by reasoning that the regional restriction in the two statutes was “rationally related to an attempt to maintain a banking system responsive to local needs in New England.” Id., at 381. The Board then analyzed the proposed transactions in light of the relevant statutory considerations set out in 12 U. S. C. §§ 1842(c) and 1843(c)(8) and approved the applications.
Pursuant to 12 U. S. C. § 1848, which provides that “[a]ny party aggrieved by an order of the Board” may seek review in a federal court of appeals, and § 1850, which permits prospective competitors to be aggrieved parties under §1848, Citibank, Northeast, and Union Trust petitioned the Court of Appeals for the Second Circuit to review the Board’s order approving the BNE-CBT acquisition. Citibank also petitioned for review of the HNC-Arltru acquisition, and Northeast and Union Trust were permitted to intervene. These petitions were consolidated and the acquisitions stayed pending expedited review. Meanwhile, the Board stayed its order approving the BBC-Colonial acquisition, and the Court of Appeals consolidated a petition filed by Citicorp for review of that transaction with the two other pending review petitions. The court also permitted BBC, BNE, CBT, HNC, the State of Connecticut, and the Commonwealth of Massachusetts to intervene. The Court of Appeals affirmed the Board’s orders approving the three applications in all respects. 740 F. 2d 203 (1984). It agreed with the Board’s determination that the Connecticut and Massachusetts statutes satisfied the terms of the Douglas Amendment, and it then rejected challenges to the Board’s orders under the Commerce Clause, the Compact Clause, and the Equal Protection Clause. The Court of Appeals stayed its mandate and ordered that the status quo be maintained pending disposition by this Court.
The Douglas Amendment
The Douglas Amendment to the BHCA prohibits the Board from approving the application of a bank holding company or a bank located in one State to acquire a bank located in another State, or substantially all of its assets, unless the acquisition “is specifically authorized by the statute laws of the State in which such bank is located, by language to that effect and not merely by implication.” § 1842(d). Clearly the proposed acquisitions with which we deal in this case must be consistent with the Douglas Amendment, or they are invalid as a matter of federal statutory law. If the Massachusetts and Connecticut statutes allowing regional acquisitions are not the type of state statutes contemplated by the Douglas Amendment, they would not lift the ban imposed by the general prohibition of the Douglas Amendment. While petitioners blend together arguments about the meaning of the Douglas Amendment with arguments about the effect of the Commerce Clause, U. S. Const., Art. I, §8, cl. 3, we think the contentions are best treated separately.
The Board resolved the statutory issue in favor of the state statutes, concluding that they were the sort of laws contemplated by the Douglas Amendment. While the Board apparently does not consider itself expert on any constitutional issues raised, it is nonetheless an authoritative voice on the meaning of a federal banking statute. Securities Industry Assn. v. Board of Governors of Federal Reserve System, 468 U. S. 207 (1984). The Board may have applied a higher standard than was necessary when it analyzed the Douglas Amendment to see whether there was a “clear authorization” for selective lifting of the ban, such as the Massachusetts and Connecticut statutes undertake to do. Whether or not so stringent a standard was applicable, we think the Board was correct in concluding that it was in fact met in this case.
The language of the Douglas Amendment plainly permits States to lift the federal ban entirely, as has been done by Maine. It does not specifically indicate that a State may partially lift the ban, for example in limited circumstances, for special types of acquisitions, or for purchasers from a certain geographic region. On the other hand, it also does not specifically indicate that a State is allowed only two alternatives: leave the federal ban in place or lift it completely. The Board concluded that the language “does not appear on its face to authorize discrimination” by region or “to meet the stringent test of explicitness laid down by” this Court in the dormant Commerce Clause cases. 70 Fed. Res. Bull., at 384. We need not resolve this issue because we agree with the Board that the legislative history of the Amendment supplies a sufficient indication of Congress’ intent.
At the time of the BHCA, interstate branch banking was already prohibited by the McFadden Act. 12 U. S. C. § 36(c). The bank holding company device, however, had been created to get around this restriction. A holding company would purchase banks in different localities both within and without a State, and thereby provide the equivalent of branch banking. One of the major purposes of the BHCA was to eliminate this loophole. H. R. Rep. No. 609, 84th Cong., 1st Sess., 2-6 (1955); 101 Cong. Rec. 4407 (1955) (remarks of Rep. Wier); id., at 8028-8029 (remarks of Rep. Patman); 102 Cong. Rec. 6858-6859 (1956) (remarks of Sen. Douglas). As enacted by the House in 1955, the BHCA contained a flat ban on interstate bank acquisitions. The legislative history from the House makes it clear that the policies of community control and local responsiveness of banks inspired this flat ban. See 101 Cong. Rec. A2454 (1955) (remarks of Rep. Wier); id., at 8030-8031 (remarks of Rep. Rains); H. R. Rep. No. 609, supra, at 2-6.
The Douglas Amendment was added on the floor of the Senate. Its entire legislative history is confined to the Senate debate. In such circumstances, the comments of individual legislators carry substantial weight, especially when they reflect a consensus as to the meaning and objectives of the proposed legislation though not necessarily the wisdom of that legislation. The instant case is not a situation where the comments of an individual legislator, even a sponsor, is at odds with the language of the statute or other traditionally mo're authoritative indicators of legislative intent such as the conference or committee reports.
The bill reported out by the Senate Committee on Banking and Currency permitted interstate bank acquisitions conditioned only on approval by the Federal Reserve Board. This approach apparently was favored by many of the large bank holding companies which sought further expansion, see, e. g., Control of Bank Holding Companies, 1955: Hearings on S. 880 et al. before the Subcommittee of the Senate Committee on Banking and Currency, 84th Cong., 1st Sess., 132, 136 (1955) (testimony of Ellwood Jenkins, First Bank Stock Corp.), 298-299 (Baldwin Maull, Marine Midland Corp.), 320 (Cameron Thomson, Northwest Bancorporation), cf. 375, 385 (Frank N. Belgrano, Jr., Transamerica Corp.), and by some who thought the total ban in the House bill offensive to States’ rights, see 102 Cong. Rec. 6752 (1956) (remarks of Sen. Robertson, floor manager of Committee bill, quoting Sen. Maybank).
The Douglas Amendment was a compromise between the two extremes that also accommodated the States’ rights concern:
“Our amendment would prohibit bank holding companies from purchasing banks in other States unless such purchases by out-of-State holding companies were specifically permitted by law in such States.” Id., at 6860 (remarks of Sen. Douglas).
Accord, ibid, (remarks of Sen. Bennett in opposition to the Amendment).
Of central concern to this litigation, the Douglas compromise did not simply leave to each State a choice one way or the other — either to permit or bar interstate acquisitions of local banks — but to allow each State flexibility in its approach. Senator Douglas explained that under his amendment bank holding companies would be permitted to acquire banks in other States “only to the degree that State laws expressly permit them.” Id., at 6858. Petitioners contend that by the phrase “to the degree” Senator Douglas intended merely a quantitative reference to the number of States which might lift the ban, and did not mean that a State could partially lift the ban. Petitioners’ contention, however, is refuted by the close analogy drawn by Senator Douglas between his amendment and the McFadden Act, 12 U. S. C. § 36(c):
“The organization of branch banks proceeded very rapidly in the 1920’s, and to check their growth various States passed laws limiting, and in some cases preventing it, as in the case of Illinois. National banks had previously been implicitly prohibited from opening branches, and there was a strong movement to remove this prohibition and completely open up the field for the national banks. This, however, was not done. Instead, by the McFadden Act and other measures, national banks have been permitted to open branches only to the degree permitted by State laws and State authorities.
“I may say that what our amendment aims to do is to carry over into the field of holding companies the same provisions which already apply for branch banking under the McFadden Act — namely, our amendment will permit out-of-State holding companies to acquire banks in other States only to the degree that State laws expressly permit them; and that is the provision of the McFadden Act.” Ibid.
See id., at 6860.
In enacting the McFadden Act in 1927, Congress relaxed federal restrictions on branch banking by national banks, but at the same time subjected them to the same branching restrictions imposed by the States on state banks. First National Bank v. Walker Bank & Trust Co., 385 U. S. 252, 258 (1966). Congress intended “to leave the question of the desirability of branch banking up to the States,” ibid., and to permit branch banking by national banks “‘in only those States the laws of which permit branch banking, and only to the extent that the State laws permit branch banking.’ ” Id., at 259 (quoting Sen. Glass, 76 Cong. Rec. 2511 (1933)). The McFadden Act did not offer the States an all-or-nothing choice with respect to branch banking. As Senator Douglas observed, some States had limited intrastate branching by state banks, and others like Illinois had prohibited it altogether.
This variative approach to intrastate branching was nicely illustrated at the time by the structure in New York, which Senator Douglas described as follows: “In New York the State is divided into 10 zones. Branch banking is permitted within each of the zones, but a bank cannot have branches in another zone.” 102 Cong. Rec. 6858 (1956). At the same time, Pennsylvania permitted branching in contiguous counties. Upper Darby National Bank v. Myers, 386 Pa. 12, 124 A. 2d 116 (1956). In view of this analogy to the McFadden Act and Senator Douglas’ explanation of that Act, there can be no other conclusion but that Congress contemplated that some States might partially lift the ban on interstate banking without opening themselves up to interstate banking from everywhere in the Nation.
Not only are the Massachusetts and Connecticut statutes consistent with the Douglas Amendment’s anticipation of differing approaches to interstate banking, but they are also consistent with the broader purposes underlying the BHCA as a whole and the Douglas Amendment in particular to retain local, community-based control over banking. Faced with growing competition from nonbank financial services that are not confined within state lines, these States sought an alternative that allowed expansion and growth of local banks without opening their borders to unimpeded interstate banking. The Connecticut General Assembly established a Commission in 1979 to study the problem. It concluded:
“Both at the national and state levels the philosophy underlying our structure of bank regulation has been to promote a pluralistic banking system — a system comprised of many units, rather than a highly concentrated system made up of a few large banks. The promotion of local ownership and control of banks has as one of its objectives the preservation of a close relationship between those in our communities who need credit and those who provide credit. To allow the control of credit that is essential for the health of our state economy to pass to hands that are not immediately responsive to the interests of Connecticut citizens and businesses would not, we believe, serve our state well. Similarly, to expose our smaller banks to the rigors of unlimited competition from large out-of-state banking organizations — particularly at a time when deregulation of banking products at the federal level is already putting strains on the resources of smaller banks — would not be wise.” Report to the General Assembly of the State of Connecticut (Jan. 5, 1983), 4 App. in No. 84-4047 (CA2), pp. 1230, 1240-1241.
Rather, the Commission proposed “an experiment in regional banking” as a first step toward full interstate banking which “would afford the legislature an opportunity to make its own calculus of the benefits and detriments that might result from a broader program of interstate banking.” Id., at 1241-1242. The Connecticut General Assembly adopted the Commission’s recommendations, and we believe that Connecticut’s approach is precisely what was contemplated by Congress when it adopted the Douglas Amendment.
We hold that the Connecticut and Massachusetts statutes are of the kind contemplated by the Douglas Amendment to lift its bar against interstate acquisitions.
Commerce Clause
Petitioners contend that the regional limitation in the Massachusetts and Connecticut statutes burdens commerce from without the region while permitting a free flow of commerce among the States within the region. They provide numerous citations to prove that one of the principal purposes of the Framers of the Constitution was to break up and forestall precisely this type of economic “Balkanization” into confederations of States to the detriment of the welfare of the Únion as a whole. See, e. g., H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 533 (1949); Hughes v. Oklahoma, 441 U. S. 322, 325-326 (1979); The Federalist Nos. 7 and 22, pp. 62-63, 143-145 (Rossiter ed. 1961). There can be little dispute that the dormant Commerce Clause would prohibit a group of States from establishing a system of regional banking by excluding bank holding companies from outside the region if Congress had remained completely silent on the subject. Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 39-44 (1980). Nor can there be serious question that an individual State acting entirely on its own authority would run afoul of the dormant Commerce Clause if it sought to comprehensively regulate acquisitions of local banks by out-of-state holding companies. Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941 (1982).
But that is not our case. Here the commerce power of Congress is not dormant, but has been exercised by that body when it enacted the Bank Holding Company Act and the Douglas amendment to the Act. Congress has authorized by the latter amendment the Massachusetts and Connecticut statutes which petitioners challenge as violative of the Commerce Clause. When Congress so chooses, state actions which it plainly authorizes are invulnerable to constitutional attack under the Commerce Clause. Western & Southern Life Insurance Co. v. State Board of Equalization, 451 U. S. 648, 653-654 (1981); White v. Massachusetts Council of Construction Employers, Inc., 460 U. S. 204 (1983); cf. South-Central Timber Development, Inc. v. Wunnicke, 467 U. S. 82 (1984). Petitioners’ Commerce Clause attack on the challenged acquisitions therefore fails.
Compact Clause
Petitioners maintain that the Massachusetts and Connecticut statutes constitute a compact to exclude non-New England banking organizations which violates the Compact Clause, U. S. Const., Art. I, §10, cl. 3, because Congress has not specifically approved it. We have some doubt as to whether there is an agreement amounting to a compact. The two statutes are similar in that they both require reciprocity and impose a regional limitation, both legislatures favor the establishment of regional banking in New England, and there is evidence of cooperation among legislators, officials, bankers, and others in the two States in studying the idea and lobbying for the statutes. But several of the classic indicia of a compact are missing. No joint organization or body has been established to regulate regional banking or for any other purpose. Neither statute is conditioned on action by the other State, and each State is free to modify or repeal its law unilaterally. Most importantly, neither statute requires a reciprocation of the regional limitation. Bank holding companies based in Maine, which has no regional limitation, and Rhode Island, which will drop the regional limitation in 1986, are permitted by the two statutes to acquire Massachusetts and Connecticut banks. These two States are included in the ostensible compact under petitioners’ theory, yet one does not impose the exclusion to which petitioners so strenuously object and the other plans to drop it after two years.
But even if we were to assume that these state actions constitute an agreement or compact, not every such agreement violates the Compact Clause. Virginia v. Tennessee, 148 U. S. 503 (1893).
“The application of the Compact Clause is limited to agreements that are ‘directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.’ ” New Hampshire v. Maine, 426 U. S. 363, 369 (1976), quoting Virginia v. Tennessee, supra, at 519.
See United States Steel Corp. v. Multistate Tax Comm’n, 434 U. S. 452, 471 (1978).
In view of the Douglas Amendment to the BHCA, the challenged state statutes which comply with that Act cannot possibly infringe federal supremacy. To the extent that the state statutes might conflict in a particular situation with other federal statutes, such as the provision under which the Federal Deposit Insurance Corporation will arrange for the acquisition of failing banks by out-of-state bank holding companies, 12 U. S. C. § 1823(f), they would be pre-empted by those statutes, and therefore any Compact Clause argument would be academic. Petitioners also assert that the alleged regional compact impermissibly offends the sovereignty of sister States outside of New England. We do not see how the statutes in question either enhance the political power of the New England States at the expense of other States or have an “impact on our federal structure.” United States Steel Corp. v. Multistate Tax Comm’n, supra, at 471, 473.
Equal Protection Clause
Petitioners argued before the Board and the Court of Appeals that the Massachusetts and Connecticut statutes violated the Equal Protection Clause, U. S. Const., Arndt. 14, §2, by excluding bank holding companies from some States while admitting those from others. This claim was abandoned in their petition for certiorari and their briefs on the merits, but after our decision in Metropolitan Life Insurance Co. v. Ward, 470 U. S. 869 (1985), petitioners filed a supplemental brief urging us to consider the equal protection issue. Because the issue was fully reviewed by the Board and the Court of Appeals and because it would undoubtedly cloud other pending applications for acquisitions by bank holding companies, we elect to decide it.
In Metropolitan Life we held that encouraging the formation of new domestic insurance companies within a State and encouraging capital investment in the State’s assets and governmental securities were not, standing alone, legitimate state purposes which could permissibly be furthered by discriminating against out-of-state corporations in favor of local corporations. There we said:
“This case does not involve or question, as the dissent suggests, post, at 900-901, the broad authority of a State to promote and regulate its own economy. We hold only that such regulation may not be accomplished by imposing discriminatorily higher taxes on nonresident corporations solely because they are nonresidents.” Id., at 882, n. 10.
Here the States in question — Massachusetts and Connecticut — are not favoring local corporations at the expense of out-of-state corporations. They are favoring out-of-state corporations domiciled within the New England region over out-of-state corporations from other parts of the country, and to this extent their laws may be said to “discriminate” against the latter. But with respect to the business of banking, we do not write on a clean slate; recently in Lewis v. BT Investment Managers, Inc., 447 U. S., at 38, we said that “banking and related financial activities are of profound local concern.” This statement is a recognition of the historical fact that our country traditionally has favored widely dispersed control of banking. While many other western nations are dominated by a handful of centralized banks, we have some 15,000 commercial banks attached to a greater or lesser degree to the communities in which they are located. The Connecticut legislative Commission that recommended adoption of the Connecticut statute in question considered interstate banking on a regional basis to combine the beneficial effect of increasing the number of banking competitors with the need to preserve a close relationship between those in the community who need credit and those who provide credit. 4 App. in No. 84-4047 (CA2), pp. 1289-1241. The debates in the Connecticut Legislature preceding the enactment of the Connecticut law evince concern that immediate acquisition of Connecticut banks by holding companies headquartered outside the New England region would threaten the independence of local banking institutions. See, e. g., App. to Pet. for Cert. A157-A160. No doubt similar concerns motivated the Massachusetts Legislature.
We think that the concerns which spurred Massachusetts and Connecticut to enact the statutes here challenged, different as they are from those which motivated the enactment of the Alabama statute in Metropolitan, meet the traditional rational basis for judging equal protection claims under the Fourteenth Amendment. Barry v. Barchi, 443 U. S. 55, 67 (1979); Vance v. Bradley, 440 U. S. 93, 97 (1979).
We hold that the state statutes here in question comply with the Douglas Amendment and that they do not violate the Commerce Clause, the Compact Clause, or the Equal Protection Clause of the United States Constitution. The judgment of the Court of Appeals is therefore
Affirmed.
Justice Powell took no part in the decision of this case.
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_appel1_1_3
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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 "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
MERRELL SOULE CO. v. POWDERED MILK CO. OF AMERICA.
Circuit Court of Appeals, Second Circuit.
April 6, 1925.
No. 300.
1. Parents ©=>318(1) — Allowance for profits, not actually gained, not permissible in accounting for infringement.
In an accounting for infringement of patent, award for profits, admittedly not based on actual gains from business in which infringement was committed, and which actually showed a loss, held not sustainable.
2. Patents ©=>325 — Allowance tor auditing books of patent infringer not sustainable in absence of profits.
In accounting for patent infringement, allowance to plaiuüfí for overhauling- defendant’s books cannot be sustained where defendant realized no profits.
3. Patents ©=>3l9(i) — Damages may be awarded on royalty basis, though infringer made no profit.
Though infringer realized no profits, recovery may be awarded on royalty basis, if tho evidence indicates any reasonable method upon which damages may be assessed against defendant for his trespass.
4. Patents ©=>319(1) — .Plaintiff entitled to damages for infringement of patent on “reasonable royalty” basis.
In accounting for infringement of closely held patent, although defendant actually operated his plant at a loss, and- much of profitable conduct of plaintiff’s business depended upon pre-existing method of preparing milk for patented process, evidence held, to warrant recovery of damages on “reasonable royalty” basis.
5. Patents ©=>319(4) — interest on damages upon fixed royalty basis oaEoiilated from tim® royalty would have been due.
In accounting for infringement of a patent, interest upon damages assessed upon a fixed royalty basis may be calculated from the time when the royalty would have been due.
6. Patents ©=>319(4) — Interest on damages assessed on reasonable royalty basis discretionary.
In accounting for infringement of a patent, interest on damages assessed upon reasonable royalty basis is discretionary.
Appeal from the District Court of the United States for the Western District of Now York.
Action by the Merrell So-ule Company against the Powdered Milk Company of America. Judgment for plaintiff (2 F.[2d,] 107), and defendant appeals.
Reversed, with directions.
Letters patent were issued to Stauf in 1901 (No. 666,711) for a process of converting milk into a dry powder soluble in water. This patent in this case, was sustained in the court below in 1914. 215 F. 922. That decision was affirmed in this court on March 9, 1915 (222 F. 911, 138 C. C. A. 391), and the patent declared to bo one of worth and entitled to a liberal interpretation.
The usual accounting was directed, and proceedings before the master began January 8, 1917, and his report wa.s filed May 23, 1924. With some modifications, not now important, the report was confirmed, and final decree entered on behalf of plaintiff September 12,1924.
This decree awarded the plaintiff as profits, “which the defendant has made by reason of the infringement herein found,” amounting to $51,436.89. It further granted plaintiff recovery for $2,841.25, being a “disbursement made by the plaintiff in conducting an examination and audit of defendant’s books.”
From this final decree defendant appealed.
Archibald Cox and Harry A. English, both of New York City, for appellant.
Howard P. Denison and Eugene A. Thompson, both of Syracuse, N. Y., for appellee.
Before ROGERS, HOUGH, and HAND, Circuit Judges.
HOUGH, Circuit Judge
(after stating- the facts as above). The master declared what he considered to be the profits derived from infringement by defendant, and also what he regarded as a proper award of damages on the basis of a reasonable royalty. ‘The court below, having- substantially affirmed the finding as to profits did not pass upon damages, but the whole case having been appealed, and, it being assigned for error inter alia that the District Court did not hold “that there was no legal proof upon which a judgment for more than nominal damages could be based,” we axe required to consider the whole record and to declare what judgment should have been entered on the report.
The award of profits is admittedly not based upon any aetual gains obtained by defendant from the business in which, in common parlance, the infringement was committed. What defendant did was this; It acquired a creamery; i. e., an establishment designed for the making of butter. For a creamery, skim milk is a waste product; yet defendant thought it better business to buy the creamery and utilize the skim milk there produced, rather than to set up a new establishment and buy its milk skimmed for the purpose -of making milk powder therefrom.
This may not have been an economical method of pursuing the milk powder business; but there is no evidence tending to show that the butter enterprise was a blind or shelter for infringement, nor that defendant did not expect or hope to make a profit out of the manufacture of butter as well as from milk powder. Neither is it denied that during the infringing period, which extended from August, 1910, to April, 1915, defendant’s entire business (i. e., the making of butter and powdered milk) showed a loss.
Defendant declared this fact by its account filed at the outset of proceedings before the master, and exhaustive investigation of defendant’s books by five employees of plaintiff (hereinafter referred to) established the fact beyond peradventure.
The master made an award of so-called profits, however, on the theory that defendant’s creamery was to be considered as two separate businesses — one, the business which defendant bought; the other, the business of making powdered milk. For the second business the basis or raw material was skim milk; but, since this skim milk was derived from a. creamery that was losing money, it cost so much that defendant ought not to have used it, but should have gone into the open market and bought cheaper skim milk, and, if this had been done, while in other respects defendant’s business was conducted as a unit, the separate or separable business of making powdered milk would have shown a profit; i. e., the amount declared and awarded to plaintiff.
This procedure is in our judgment inconsistent with the facts and opposed to the law. As to the facts, there is no satisfying proof that, considering the location of defendant’s ereamery, there was any sufficient supply of skim milk available for purchase, while the law is plain that even that trespasser, the infringer, is liable only for “aetual not possible gains,” and that there were no actual gains stands admitted. Rubber Co. v. Goodyear, 9 Wall. 801, 19 L. Ed. 566; Coupe v. Royer, 155 U. S. 565, 15 S. Ct. 199, 39 L. Ed. 263.
In the court below, this method of constructing an imaginary business for the defendant, and mulcting him in what he would have made had he embarked thereupon, was thought to be justified by Hemolin Co. v. Harway, 166 F. 434, 92 C. C. A. 186. We find no such ruling there made. In that ease defendant was and long had been engaged in making and selling presumably at market rates and profitably a well-known commercial article. The patent there in suit could be used to alter and better this commercial article — a process which defendant used, and so infringed. The court held that the profit on the infringing product should be separated; so much thereof as was represented by the market price of the old noninfringing article to belong to defendant, and the increased profit gained by infringement to accrue to the patentee. To construe that allocation of profits as warrant for separating one business into two, and punishing even an infringer for not having more successfully infringed, cannot be done in reason, and the procedure also renders the case opposed to the ruling decisions above quoted.
As there were no profits, the decree below was erroneous in awarding them, and with the profits the allowance for overhauling defendant’s books must also go. This allowance was thought to be justified by Flat-Slab Co. v. Turner (C. C. A.) 285 F. 257, 284. That decision put on the infringer the cost of an accountant “employed by the master” to go over the infringer’s books. The practice is perilous, and we are not now called upon either to approve or condemn; but we point out that the award here is to the plaintiff, who sent its own chief accountant and four assistants to examine defendant’s books, and the major portion of the sum awarded consists of the salaries of these five men (regularly paid by plaintiff) for the time they expended on said books. The rest is apparently for travel and attendant expenses. The ease with which such a charge ean be abused is sufficient reason for extreme caution in permitting anything of the kind.
Our reason for disallowing the whole item is that there were no profits, but it is thought advisable to point out that the Plat-Slab Case is authority for nothing but employment by the master of an accountant; it does not cover this attempted transfer to defendant of a substantial portion of plaintiff’s salary list.
The question remains whether plaintiff has made out a case for damages, on what has come to be called the “reasonable royalty” basis.
In Consolidated, etc., Co. v. Diamond, etc., Co. (D. C.) 226 F. 455, affirmed 232 F. 475, 146 C. C. A. 469, it was said at page 459, that Dowagiac, etc., Co. v. Minnesota, etc., Co., 235 U. S. 641, 35 S. Ct. 221, 59 L. Ed. 398, may bo regarded “as settling the mooted question as to whether a reasonable royalty may be allowed, and as laving down a more liberal rule, to be applied with caution.”
With this we agree; and the historical development of the matter is that the court in the Dowagiae Case had before it two lines of its own decisions — one very strict, of which Coupe v. Royer, supra, was commonly, and we think naturally, regarded as a striking illustration; the other apparently recommending a resort to “general evidence” in order to obtain “a fair measure of damages or even an approximation thereof.” Of these decisions Suffolk Co. v. Hayden, 3 Wall. 315, 18 L. Ed. 76, and Root v. Railway Co., 105 U. S. 189, 26 L. Ed. 975, were the most commonly cited examples. The Dowagiae decision unquestionably indorsed the more liberal rule by holding that, where a patent had been kept as a close monopoly, and there was no established royalty, it is “permissible to show the value by proving what would have been a reasonable royalty, considering the nature of the invention, its utility and advantages, and the extent of the use involved.”
But we think any reader of that ruling decision will say that what turned the scale in favor of liberality was the line of cases there reviewed and coming from various lower courts, and particularly the judgment of Denison, J., in United States Frumentum Co. v. Lauhoff, 216 P. 610, 132 C. C. A. 614, decided while the Dowagiae Caso was under consideration. That learned judge has done more than any other one man to liberalize the matter of damages for infringement of a patent, and in the Prumentum Case (page 617, 132 C. C. A. 621) he well put the situation as it stood before his own decision. He said, and spoke from experience in saying, that “it is familiar knowledge * * * that experienced patent counsel have advised that, as a general rule, no recovery [of damages] that would pay the expense of litigation could be anticipated.” On the same page he stated convincingly the reasons why general damages “frequently spoken of as a ‘reasonable royalty’ ” ought to be recovered on exactly the principles that a jury had always been permitted to assess damages against one who by a trespass had injured any other species of personal property. He there pointed out inter alia that a jury could be shown to what extent the defendant had taken plaintiff’s patent property, the extent and use of that property, what share of the soiling price it was customary to allow for the use of such an invention, and experts might give useful opinions as to the value of the property appropriated by the infringer; also that from such evidence “not resting on any of the applicable exact methods of computation,” the “jury or the court [might] estimate in a general, but in a sufficiently accurate, way the injury to plaintiff caused by each infringing sale.” This is the more fully stated doctrine authoritatively approved by the Dowagiae decision, and it has boon received with general approbation.
In this court, Munger v. Perlman Corp. (C. C. A.) 275 F. 21, shows an instance in which the trial court had found at final hearing- that there was no basis for an award of profits or for an assessment of damages on lost sales, and that there was no established license rate, whereupon the matter was referred by an order using exactly the above-quoted language of the Dowagiae Case; and the method of computation by us approved under that order was substantially to consider the various estimates or opinions of persons more or less qualified to express them and arrive at a result, as would a jury.
More recently, in K. W. Ignition Co. v. Te Temco (C. C. A.) 283 F. 873, certiorari denied 260 U. S. 746, 43 S. Ct. 247, 67 L. Ed. 493, there was no opinion evidence (page 878) as to the rate of reasonable royalty; yet the court proceeded to assess damages on the basis of a royalty estimated as appropriate to the manufacturing and selling profits proved.
Still more recently, in Austin, etc., Co. v. Disc, etc., Co. (C. C. A.) 291 F. 301, certiorari denied 263 U. S. 717, 44 S. Ct. 180, 68 L. Ed. 522, it is well said (page 304): “Where general damages by way of a reasonable royalty are allowed there is no mathematical formula for their determination. The purpose in view in any particular ease is to determine what amount a person desiring to manufacture and sell the patented article would, as a business proposition, be willing to pay as a royalty; that is, what amount could he fairly pay * * and be able to make and sell in the market the patented article at a reasonable profit.” The learned court added that evidence directed to this end would be as “to the character of the invention, costs of manufacture, costs of marketing, sales prices, demand,” etc.; also that royalties paid “in more or less similar situations would be considered, although the weight of such evidence in any particular, ease might b§ slight.”
Result nowadays is that, since the Dowagiae decision opinion- has strongly held that the so-called rule of “reasonable royalty” means that, if the evidence indicates any reasonable method by which a jury could award general damages against a trespasser upon the patent property of the plaintiff, either the jury or the court may estimate' and award such damages.
■ In this case there is ample evidence that the patent was closely held; plaintiff was substantially the only authorized manufacturer of powdered milk under Staüf’s patent. Defendant did infringe by using that patented process, and did sell considerable quantities of a product that competed with the patented product at a time when plaintiff always had on hand and was ready and willing to sell the quantities of powdered milk actually sold by defendant.’ There is some evidence by persons acquainted with the powdered milk trade of what in their opinion would have been a reasonable royalty, and there is plain evidence, wholly uncontradieted, that during the entire period of infringement the plaintiff was making and selling its powdered milk at an average profit of 2.17 cents per pound. But there is also evidence that plaintiff made and makes its powdered milk, not only under Stauf’s patent, but by using a process of precondensation before applying the Stauf method, and it appears to us fairly shown that the economical and profitable conduct of plaintiff’s business as proven depends to some extent upon this preeondensing method of preparing milk for the patented process. The question then is, What would a reasonable man, who wished to go into this business in the hope of procuring a reasonable profit, be. willing to pay for the use of a necessary process, which, however, was íJüly a part of the whole process of making powdered milk?
There is ample evidence for a jury to act upon. Therefore there is enough to enable us to form opinion, and it is our opinion, and we so find, that a uniform royalty of one-half a cent per pound was as much as any one could reasonably be expected to pay for a license under the patent in suit. Defendant sold according to the master’s report 3,128,723 pounds of the powdered product; therefore the damages are assessed at $15,643.61.
There still remains the question of interest npon damages. If the damages had been assessed upon a fixed royalty basis, interest has long been allowed calculated from the time when the royalty would have been due. Walker (5th Ed.) § 571, citing eases. In Goodrich Co. v. Consolidated Co., 251 F. 617, 163 C. C. A. 611, certiorari denied 247 U. S. 519, 38 S. Ct. 580, 62 L. Ed. 1246, it was held that there was “no valid reason for withholding interest where the damages are based upon a reasonable royalty.” Page 624 (163 C. C. A. 618). And this decision was followed by the same court that decided the Frumentum Case in K. W. Ignition Co. v. Temco, supra (p. 880), and interest was awarded “from the date infringement ceased.”
While we are not disposed to depart from this as a general rule, still these are damages recovered' and recoverable in equity, and the rule is general that, especially in matters of tort, interest is in discretion. We so held in Pennsylvania, etc., Co. v. New York, etc., Co., 198 F. 778, 780. And the principle is thoroughly recognized in Bates v. Dresser, 251 U. S. 524, 40 S. Ct. 247, 64 L. Ed. 388.
In the condition of this record we should be inclined to refuse or limit interest if it were possible to allocate the blame for the intolerable and (even in patent causes) almost unheard of delay in this ease. It was more than a year and a half after this court approved the patent before any proceedings before the master began. The plaintiff put in its case in about a year, and after that testimony was taken at intervals far apart, until an agreement was reached to submit briefs to the master on January 15, 1921 — something more than three year’s before he reported. So far as we can see from the printed book, it was a case of arcades ambo. Therefore, reserving the right in a proper ease to treat interest on damages in equity as in discretion, we allow. interest from the date of order on the mandate of this court issued in March, 1915. The defendant will recover the costs of this appeal; the costs of the lower court are left to the discretion of that tribunal.
Decree reversed, with directions to enter a new decree in conformity with this opinion.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_r_fiduc
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Hazel ADKINS and Howard Adkins, Plaintiffs-Appellants, v. Richard L. PIERSON, Defendant-Appellee.
No. 17130.
United States Court of Appeals Sixth Circuit.
March 22, 1967.
Sherwin Schreier, Detroit, Mich., Maile, Leach & Silver, Detroit, Mich., on brief, for appellants.
John D. Hayes, Detroit, Mich., Ward, Plunkett, Cooney, Rutt & Peacock, Detroit, Mich., on brief, for appellee.
Before CELEBREZZE and PECK, Circuit Judges, and PORTER , District Judge.
Honorable David S. Porter, United States District Judge for the Southern District of Ohio, sitting by designation.
PER CURIAM.
Two actions were filed in the District Court arising out of an automobile collision on December 16, 1961, at 9:30 p. m. on U. S. 24, Monroe County, Michigan, between a vehicle owned and operated by Richard L. Pierson, hereinafter referred to as Appellee, and a vehicle in which Hazel and Howard Adkins, hereinafter referred to as Appellants, were passengers. The vehicle, in which the Appellants were passengers in the rear seat, was struck from the rear after it had become disabled upon the highway and was not in motion and was without lights or other illumination.
In Civil Action No. 23,309, Appellee Pierson sued the owner and driver of the vehicle in which the Appellants were passengers. In Civil Action No. 24,240, Pierson was sued by the Appellants. The two cases were consolidated for trial. In Case No. 24,240, in which Appellee Pier-son was Defendant, the defense was that he was confronted with a sudden emergency which created the perilous .condition causing the collision. The jury, hearing the two cases jointly, awarded a money judgment to Appellee Pierson in Case No. 23,309, and returned a verdict in favor of Appellee Pierson against the Appellants of no cause of action in Case No. 24,240.
This appeal is initiated only from the jury’s verdict in Case No. 24,240.
The only issue raised on appeal is whether or not the Trial Court properly instructed the jury on the doctrine of sudden emergency.
Appellants contend that the Trial Court committed reversible error when it failed to include in its charge the specific language of the emergency doctrine, “that the party is entitled to the benefit of the rule only if the emergency occurs through no fault of his own”. Appellants took their exception to the Court’s charge and also asked the Court to correct its charge prior to the jury beginning deliberation. The Court refused to do so, believing its charge adequately covered this request.
Appellee contends that the charge, when viewed as a whole, properly instructed the jury as to the applicable law. This Court must apply the Michigan law.
The sudden emergency doctrine has been fully defined by the Michigan Supreme Court in Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528, 21 N.W.2d 841 (1946), wherein the Court said:
“It is claimed that the charge as given ignored the limitation that the socalled emergency doctrine did not apply if the peril was caused by negligence on the part of plaintiff’s driver or if his negligence contributed to such result. The general rule is stated in Huddy on Automobiles, 8th Ed., p. 359, as follows:
“ ‘One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.’ The rule so stated was quoted, with approval by this Court in Walker v. Rebeuhr, 255 Mich. 204, 237 N.W. 389.
“In view of the conflicting testimony as to how and why the accident happened, the jury should have been told that plaintiff was not entitled to the benefit of the emergency doctrine if his negligence contributed to or brought about the sudden peril by which it claims its driver was confronted. Under the holdings of this Court in Walker v. Rebeuhr, supra; Lagassee v. Quick, 273 Mich. 295, 262 N.W. 915, and other decisions of like import, we think that the failure to state the rule in such manner as to embody the necessary qualifications was erroneous.”
This doctrine was reiterated in Hicks v. B & B Distributors, Inc., 353 Mich. 488, 91 N.W.2d 882 (1958) when the Court held:
“The charge failed to advise the jury that a party is entitled to the benefit of the sudden emergency rule only if the emergency occurs through no fault or negligence of his own.
“Such an instruction as the one above has been considered by this Court on several occasions, and the failure to advise the jury that a party is entitled to the benefit of that rule only if the emergency occurs through no fault or negligence of his own, has, in each instance, been held to constitute reversible error. Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528, 21 N.W.2d 841; Hansel v. Hawkins, 326 Mich. 177, 40 N.W.2d 109, and cases to the same effect therein quoted by Chief Justice. Dethmers, including Walker v. Rebeuhr, 255 Mich. 204, 237 N.W. 389; Lagassee v. Quick, 273 Mich. 295, 262 N.W. 915; Anderson v. Bliss, 281 Mich. 323, 274 N.W. 809; Murner v. Thorpe, 284 Mich. 331, 279 N.W. 849.”
See also Barringer v. Arnold, 358 Mich. 594, 101 N.W.2d 365 (1960):
The Trial Court’s charge on sudden emergency was as follows:
“There has been discussion about an emergency and what care is required. I charge you that when one is confronted with sudden peril, he is not required to exercise the coolness of judgment and care that a person who would — I will read it over again.
“I charge you that when one is confronted with sudden peril, he is not required to exercise the coolness of judgment and care that a person would who was not confronted with danger, and is only required to act with that degree of care which an ordinarily prudent person would exercise if placed in such a position. To put it another way: One who is suddenly put in peril is not required to do that which, after the peril is ended, it is seen he might have done and escaped. The law makes allowance for the fright and lack of coolness of judgment incident to such peril or danger.
“If such person in good faith acts as a person of ordinary prudence might have acted under the circumstance, he will not be guilty of either negligence or contributory negligence, even though the act done is actually dangerous and results in injury in attempting to escape injury.”
It is obvious from a reading of the Court’s charge, and the appellee concedes that the charge failed to include the specific language of limitation of the emergency doctrine, “unless the emergency in which he finds himself is brought about by his own negligence.”
Under Michigan law, where the emergency doctrine is applicable, it is incumbent upon the Court to give the complete emergency doctrine, and failing to do so is prejudicial error, even though the Court charged on the elements of negligence.
The case is reversed and remanded for new trial.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
sc_adminaction_is
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
FRANCHISE TAX BOARD OF CALIFORNIA et al. v. ALCAN ALUMINIUM LTD. et al.
No. 88-1400.
Argued November 1, 1989
Decided January 10, 1990
White, J., delivered the opinion for a unanimous Court.
Timothy G. Laddish, Assistant Attorney General of California, argued the cause for petitioners. With him on the briefs were John K. Van de Kamp, Attorney General, and Patricia Streloff.
Lawrence A. Salibra II argued the cause for respondents. With him on the brief for respondent Alcan Aluminium Ltd. was Peter D. Miller. James Merle Carter and John B. Lowry filed briefs for respondent Imperial Chemical Industries PLC.
Briefs of amici curiae urging reversal were filed for the State of Idaho et al. by James T. Jones, Attorney General of Idaho, Theodore V. Spangler, Jr., Deputy Attorney General, Don Siegelman, Attorney General of Alabama, Robert K. Corbin, Attorney General of Arizona, John Steven Clark, Attorney General of Arkansas, Duane Woodard, Attorney General of Colorado, Clarine Nardi Riddle, Acting Attorney General of Connecticut, Frederick D. Cooke, Jr., Corporation Counsel of District of Columbia, and Charles L. Reischel, Deputy Corporation Counsel, Robert A. Butterworth, Attorney General of Florida, Michael J. Bower, Attorney General of Georgia, Warren Price III, Attorney General of Hawaii, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Thomas J. Miller, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, James E. Tierney, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, James M. Shannon, Attorney General of Massachusetts, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Robert M. Spire, Attorney General of Nebraska, John P. Arnold, Attorney General of New Hampshire, Peter N. Perretti, Jr., Attorney General of New Jersey, Hal Stratton, Attorney General of New Mexico, Robert Abrams, Attorney General of New York, Nicholas J. Spaeth, Attorney General of North Dakota, Dave Frohnmayer, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, James E. O’Neil, Attorney General of Rhode Island, Roger A. Tellinghuisen, Attorney General of South Dakota, Charles W. Burson, Attorney General of Tennessee, Jim Mattox, Attorney General of Texas, R. Paul Van Dam, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, Mary Sue Terry, Attorney General of Virginia, Kenneth 0. Eikenberry, Attorney General of Washington, Charles G. Brown, Attorney General of West Virginia, Donald J. Hanaway, Attorney General of Wisconsin, and Joseph B. Meyer, Attorney General of Wyoming; and for the Council of State Governments et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, Martin Lobel, and James F. Flug.
Briefs of amici curiae urging affirmance were filed for the Member States of the European Communities et al. by F. Eugene Wirwahn; for the Government of Canada by Mr. Wirwahn; for the Government of the United Kingdom by Mr. Wirwahn; for the Committee on State Taxation of the Council of State Chambers of Commerce by Paul H. Frankel and William D. Peltz; and for the Union of Industrial and Employers’ Confederations of Europe et al. by Alexander Spitzer.
Briefs of amici curiae were filed for the Committee of London and Scottish Bankers by Joanne M. Garvey and Joan K. Irion; for the Multi-state Tax Commission by Alan H. Friedman and Pauli Mines; and for Shell Petroleum N. V. by John R. Hupper, Richard W. Clary, and Steward R. Bross, Jr.
Justice White
delivered the opinion of the Court.
This case presents two questions: First, whether a foreign company, sole shareholder of an American subsidiary, has standing to challenge in federal court, on Foreign Commerce Clause grounds, the accounting method by which the State of California determines the locally taxable income of that subsidiary; and second, whether such a federal action for injunc-tive and declaratory relief is barred by the Tax Injunction Act, 28 U. S. C. § 1341 (1982 ed.). The Court of Appeals for the Seventh Circuit held that the foreign companies involved in this case had alleged injuries sufficiently direct and independent of the injuries to their subsidiaries to confer both Article III and stockholder standing, and that their federal actions were not barred by the Tax Injunction Act or the principle of comity that underlies that Act. 860 F. 2d 688 (1988). We granted certiorari, 490 U. S. 1019 (1989), and conclude that there is an Article III case or controversy, assume that respondents have standing as stockholders, and hold that these actions are barred by the Tax Injunction Act. Accordingly, we reverse.
I
Respondent Alcan Aluminium Limited (Alcan) is a Canadian company and indirect sole shareholder of Alcan Alu-minium Corporation (Alcancorp), an Ohio corporation with operations in California. Respondent Imperial Chemical Industries PLC (Imperial) is a British company and indirect sole shareholder of ICI Americas, Inc. (Americas), a Delaware corporation that conducts business in California. This case arises out of two separate lawsuits brought in the District Court for the Northern District of Illinois by Alcan and Imperial against petitioners herein, the Franchise Tax Board of the State of California (Board) and certain of its Chicago employees. Respondents’ lawsuits sought declaratory and injunctive relief from the Board’s method of determining the taxable income of Alcancorp and Americas alloca-ble to California. Under that method, known as the “unitary business/formula apportionment method,” the Board calculates the total earnings of the “unitary business” of which the California taxpayer is a part. It then calculates an allocation fraction for the taxpayer by taking an unweighted average of three ratios: California payroll to total payroll, California property value to total property value, and California sales to total sales. Finally, to obtain the taxpayer’s taxable income allocable to California, the Board multiplies the taxpayer’s allocation fraction by the total income of the unitary business.
Respondents allege that application of this “unitary tax” to domestic subsidiaries of foreign corporations violates the Foreign Commerce Clause, U. S. Const., Art. I, §8, cl. 3. See Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 451 (1979). We expressly left open this issue when we addressed similar claims made by a domestic parent company with foreign subsidiaries. See Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 189, n. 26, and 195, n. 32 (1983).
II
The first issue in this case is whether respondents have standing to bring these actions. We have treated standing as consisting of two related components: the constitutional requirements of Article III and nonconstitutional prudential considerations. See Warth v. Seldin, 422 U. S. 490, 498 (1975). We stated the requirements for an Article III case or controversy in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464, 472 (1982):
“Art. Ill requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 99 (1979), and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision,’ Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 38, 41 (1976).”
The Seventh Circuit stated that the Board did not seriously contest Article III standing, 860 F. 2d, at 691-692, and ruled that respondents’ ownership interests in their domestic subsidiaries alone, considered apart from any direct harms suffered as participants in foreign commerce, gave Alcan and Imperial “‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions.’ Baker v. Carr, 369 U. S. 186, 204 (1962).” Id., at 692. The Board takes issue with the Seventh Circuit’s characterization of its position with respect to Article III standing: “[T]he Board has never accepted the proposition that a shareholder seeking to redress a corporate injury has standing in the constitutional sense.” Brief for Petitioners 20, n. 4. Petitioners emphasize that a plaintiff must show that he personally has suffered an actual or threatened injury and question whether a sole shareholder’s ownership interest in a corporation is sufficient by itself to satisfy the “injury in fact” requirement of Article III. Ibid.
We think that the Court of Appeals was quite right in holding that respondents have Article III standing to challenge the taxes that their wholly owned subsidiaries are required to pay. California’s accounting method determines the amount of the taxes assessed against the subsidiaries. If those taxes are higher than the law of the land allows, that method threatens to cause actual financial injury to Alcan and Imperial by illegally reducing the return on their investments in Alcancorp and Americas and by lowering the value of their stockholdings. A judicial determination that the Board’s accounting method is unconstitutional under the Foreign Commerce Clause would prevent such injuries. That is all that is required for Article III standing.
The more difficult issue is whether respondents can meet the prudential requirements of the standing doctrine. One of these is the requirement that “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, supra, at 499. Related to this principle we think is the so-called shareholder standing rule. As the Seventh Circuit observed, the rule is a longstanding equitable restriction that generally prohibits shareholders from initiating actions to enforce the rights of the corporation unless the corporation’s management has refused to pursue the same action for reasons other than good-faith business judgment. 860 F. 2d, at 693. There is, however, an exception to this rule allowing a shareholder with a direct, personal interest in a cause of action to bring suit even if the corporation’s rights are also implicated. Respondents claim to fall within this exception, arguing that they have suffered direct injuries independent of their status as shareholders of Alcancorp and Americas. Specifically, respondents complain of the burden of complying with California’s information demands, the alleged burden of double taxation caused when California taxes foreign affiliate income that is already subject to taxes in other jurisdictions, and the burden on their choice to use an American subsidiary as an instrumentality of foreign commerce. Petitioners insist that respondents’ injuries are entirely derivative of their ownership interests in Alcancorp and Americas.
The Seventh Circuit concluded that the compliance costs and double taxation claims did not give respondents stockholder standing because these alleged burdens were better viewed as merely added costs to the subsidiaries, experienced by the foreign parents as a decline in the value of their ownership interests. Id., at 696-697. However, the court reasoned that to focus exclusively on the parents’ status as shareholders ignores a second feature of the foreign parent-domestic subsidiary relationship: the subsidiaries are owned as instrumentalities of the foreign commerce of their parents. Id., at 697. The Seventh Circuit stated that the unitary tax diminishes the attractiveness of owning American subsidiaries in comparison with entering into contracts with independent companies as a means of engaging in foreign commerce and concluded: “It is the incidence of the unitary tax, its potential to disfavor a particular mode of foreign participation in the American economy, rather than the magnitude of the costs it imposes that provides the strongest argument for standing.” Ibid. The Seventh Circuit did not decide the constitutional significance of this threat to foreign commerce under the facts of this case, but decided that in this light, there was a sufficient threat of independent injury to respondents to confer standing on them to maintain their suits.
The Ninth Circuit, in contrast, has held that California’s unitary tax does not cause direct or independent harm to a foreign parent of a domestic subsidiary so as to give the parent standing under the shareholder standing rule. Shell Petroleum, N. V. v. Graves, 709 F. 2d 593, 595, cert. denied, 464 U. S. 1012 (1983). See also EMI Ltd. v. Bennett, 738 F. 2d 994, 997 (CA9), cert. denied, 469 U. S. 1073 (1984) (following Graves)', Alcan Aluminum Ltd. v. Franchise Tax Bd., 558 F. Supp. 624, 626-629 (SDNY), aff’d, 742 F. 2d 1430 (CA2 1983), cert. denied, 464 U. S. 1041 (1984). We need not decide this dispute about respondents’ stockholder standing, for assuming that respondents do have such standing, cf. Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463, 479-480 (1976), their federal actions are nevertheless barred under the Tax Injunction Act.
I — I 1 — I I — H
The Tax Injunction Act provides: The district courts shall not enj'oin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U. S. C. § 1341 (1982 ed.). This provision applies to declaratory as well as injunctive relief. California v. Grace Brethren Church, 457 U. S. 393, 408 (1982). As explained in Rosewell v. LaSalle National Bank, 450 U. S. 503, 522 (1981) (footnote omitted):
“The statute ‘has its roots in equity practice, in principles of federalism, and in recognition of the imperative need of a State to administer its own fiscal operations.’ Tully v. Griffin, Inc., 429 U. S. [68, 73 (1976)]. This last consideration was the principal motivating force behind the Act: this legislation was first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.”
To the extent they are available, California’s refund procedures constitute a plain, speedy, and efficient remedy. Cf. Grace Brethren Church, supra, at 417. However, it is undisputed that only Alcancorp and Americas, as the actual taxpayers, can bring a California state-court challenge to the unitary business/formula apportionment method of calculating their tax. To the Seventh Circuit, this fact was enough to make the Tax Injunction Act inapplicable: “[T]he Act has not been construed so broadly as to bar a nontaxpayer (like the parent companies involved here) who lacks a remedy in state court from bringing suit in federal court on the ground that an affiliated taxpayer possesses adequate state court remedies.” 860 F. 2d, at 698. This statement may be true, but we arrive at a different conclusion. As sole shareholders, respondents have total control over Alcancorp and Americas. They can direct in all respects their subsidiaries’ pursuit of state-court relief from the unitary tax. Respondents’ inability to bring state-court challenges in their own names is not determinative where, as here, they control entities that can bring such challenges. To rule otherwise would be to elevate form over substance. See South Carolina v. Regan, 465 U. S. 367, 381, n. 19 (1984). We therefore construe the Tax Injunction Act as barring a federal action by a party who has under its direction and control an entity possessing a plain, speedy, and efficient remedy for the controlling party’s claims.
Alcan and Imperial contend that even if they are treated as effectively having all of the remedies available to their subsidiaries, they nevertheless do not have a “plain, speedy and efficient remedy” within the meaning of the Tax Injunction Act because their subsidiaries would not be permitted to raise a Foreign Commerce Clause challenge to California’s unitary tax, or at least could not base such a challenge on the allegedly distinct foreign commerce injuries suffered by their parent corporations. According to Imperial: “Americas, unlike Imperial, is not within the class of foreign investors protected by federal foreign commerce policy.” Brief for Respondent Imperial 24. Imperial argues the inverse of the shareholder standing rule — a corporation has no standing to raise claims based on injury to its shareholders. Id., at 26. Alcan contends that civil actions in California must be prosecuted in the name of the real party in interest and that “[i]f the injury is the effective deprivation of the use of a subsidiary as a vehicle for the conduct for [sic] foreign commerce, there is but one real party in interest, [Alcan].” Brief for Respondent Alcan 47, n. 24.
Petitioners, however, insist that the California courts would entertain and decide the issues that respondents desire to present. Brief for Petitioners 47-48. They point out that respondents represent that their subsidiaries are instrumen-talities of foreign commerce and argue that “it only makes sense” that the subsidiaries, who are the taxpayers, be entitled to complain of any burdens on foreign commerce that would relieve them of the taxes assessed against them. Id., at 48. At oral argument, counsel for petitioners reiterated that position,. Tr. of Oral Arg. 5, 12, 15, and informed the Court that, with respect to cases currently pending in the California courts, “in no case is the state claiming that the subsidiaries cannot raise those foreign commerce claims.” Id., at 6.
The Board’s position is, of course, not binding on the California courts, and a remedy that is uncertain or speculative is not adequate to bar federal jurisdiction, Rosewell, supra, at 516-517; Grace Brethren Church, supra, at 414, n. 31. Here, however, respondents have not demonstrated that their remedy is uncertain. Under California law, a taxpayer “claiming that the tax computed and assessed against it under this part is void in whole or in part may bring an action, upon the grounds set forth in its claim for refund . . . .” Cal. Rev. & Tax. Code Ann. §26102 (West 1979). We have been cited no case in which the California courts refused to hear a claim similar to the claims respondents want made by their subsidiaries, and there is authority to the contrary. In Mercedes-Benz of North America, Inc. v. State Bd. of Equalization, 127 Cal. App. 3d 871, 874, 179 Cal. Rptr. 758, 760 (1982), hearing denied, Mar. 17, 1982 (Cal. Sup. Ct.), a California appellate court allowed a domestic subsidiary of a foreign corporation to challenge a tax on the ground that it burdened the foreign parent’s election to conduct business through a separately incorporated subsidiary rather than a corporate subdivision. Although we cannot authoritatively determine California law, we agree with the Seventh Circuit that “[respondents] have not given us any convincing reason to doubt that the California courts will entertain Alcancorp’s and Americas’ foreign commerce clause arguments.” 860 F. 2d, at 691. Respondents cannot therefore escape the prohibitions of the Tax Injunction Act.
Should the California courts refuse to permit the subsidiaries to raise the contentions that the parents want heard, the result under the Tax Injunction Act might well be different. At this point, however, we cannot hold the Act inapplicable on the mere speculation that the California courts will not allow the taxpayer subsidiaries to raise arguments going to the constitutionality of the taxes they are required to pay.
IV
We conclude that these federal actions are barred by the Tax Injunction Act. The judgment of the Seventh Circuit is therefore reversed.
It is so ordered.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_r_stid
|
21
|
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.
Clarence Irvin TURNER, Appellant, v. STATE OF MARYLAND, Appellee.
No. 8732.
United States Court of Appeals Fourth Circuit.
Argued Jan. 21, 1963.
Decided June 5, 1963.
Ronald P. Sokol, Milwaukee, Wis. (Court-assigned counsel) [Daniel J. Meador, Charlottesville, Va., on brief], for appellant.
Russell R. Reno, Jr., Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on brief), for appellee.
Before SOBELOFF, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.
SOBELOFF, Chief Judge.
This is the sequel to an earlier appeal by Clarence Irvin Turner, a state prisoner who is serving a sentence of five years for participation with four others in an attempted armed robbery. The former appeal was from an order of the District Court denying without a hearing his petition for a writ of habeas corpus, and we remanded the case for a hearing to determine whether the representation afforded Turner at his trial was, as he claimed, so inadequate as to constitute a denial of the effective assistance of counsel. Turner v. State of Maryland, 303 F.2d 507 (4th Cir. 1962).
On this disputed issue the District Court has now conducted a hearing and taken testimony from Turner and the lawyer who had been appointed to defend him in the state proceedings. 206 F.Supp. 111. The record developed at the hearing supports the District Court’s conclusion that the trial lawyer did in fact make an effort before trial to secure information necessary to Turner’s defense. Yet, admittedly, the attorney failed to consult with his client until less than half an hour before the time set for trial, although his appointment by the court preceded the trial date by two weeks. This neglect we, like the District Court, are unable to condone.
A sense of professional responsibility should have suggested to the lawyer that the omission to communicate with his client during the two weeks available before trial not only constituted a deplorable disregard of the client’s feelings, but involved the risk of overlooking significant information which the client might have in his possession or be able to point to. Normally, in the absence of clear proof that no prejudice resulted, we should be obliged to treat the lawyer’s representation as inadequate and the trial as falling short of the standards of due process guaranteed by the Fourteenth Amendment.
However, the hearing which the District Court conducted ascertained in considerable detail not only what the attorney did and failed to do before trial but demonstrated beyond doubt that the accused in fact had no information to communicate to the lawyer which could have been helpful to the defense. In close interrogation of the prisoner and the attorney, it was clearly shown to the District Judge’s satisfaction that during their short consultation Turner told the lawyer that the statement he had given to the police was true and that Turner in fact was involved in the attempted robbery.
Apparently, the appellant even now concedes that in so advising the lawyer, he intended to admit that he sat in the get-away car in front of the victim’s store while his co-defendants entered to rob him. Turner seems, however, to have thought that his auxiliary role did not constitute guilt in law. He admitted to the District Judge that he knew the purpose for which his co-defendants went into the store while he remained in the car with the engine running. Needless to say, the fact that Turner did not accompany the others but sat in the getaway ear does not absolve him. The circumstances could possibly be considered in mitigation of the sentence and were called to the jury’s attention. Neither to the lawyer in the brief pre-trial interview nor later at the plenary hearing in the District Court, when there was a deeper inquiry, did Turner suggest any other fact or ground for defense.
The voluntariness of the appellant’s, statement to the police was at no time contested and was independently proved at the District Court hearing.
In these circumstances there is no-ground for saying that the legal representation afforded Turner was so inadequate as to warrant the invalidation of his conviction and sentence. See and compare: Jones v. Cunningham, 313 F. 2d 347 (4th Cir. 1963); Edgerton v. State of North Carolina, 315 F.2d 676-(4th Cir. 1963); Jones v. Cunningham, 297 F.2d 851 (4th Cir. 1962); Snead v. Smyth, 273 F.2d 838 (4th Cir. 1959); Brown v. Smyth, 271 F.2d 227 (4th Cir.. 1959).
Nevertheless, we must condemn-the conduct of this court-appointed lawyer. Whether a lawyer is employed by a prosperous defendant at a handsome fee or serves an indigent without compensation in the discharge of the duty resting upon him as an officer of the court, the-canons of our profession require his “entire devotion to the interest of the client,, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability.” American Bar Association, Canons of Professional Ethics, Canon 15. If the spirit of this canon had been observed, no occasion-would have arisen for a post-conviction-inquiry into the quality of counsel’s performance.
Affirmed.
. The car, bought by the appellant and his co-defendants, was titled in Turner’s name because of the five purchasers only he was of legal age.
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_casetyp1_7-3-1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright".
LEHIGH PORTLAND CEMENT COMPANY v. UNITED STATES of America, Appellant.
Nos. 14584-14586.
United States Court of Appeals Third Circuit.
Argued March 12, 1964.
Decided June 17, 1964.
Order July 1, 1964.
Michael A. Mulroney, Washington, D. C. (C. Moxley Featherston and John B. Jones, Jr., Acting Asst. Attys. Gen. Lee A. Jackson, Melva M. Graney, Attys., Dept. of Justice, Washington, D. C., Drew J. T. O’Keefe, U. S. Atty., of counsel, on the brief), for appellant.
Joseph B. Brennan, Atlanta, Ga. (Arthur Littleton, Philadelphia, Pa., Edward W. Hyland, Allentown, Pa., Willis B. Snell, Washington, D. C., Morgan, Lewis & Bockius, Philadelphia, Pa., Sutherland, Asbill & Brennan, Atlanta, Ga., of counsel, on the brief), for appel-lee.
Before BIGGS, Chief Judge, and HASTIE and SMITH, Circuit Judges
HASTIE, Circuit Judge.
In the district court the taxpayer, Le-high Portland Cement Co., obtained a judgment for the refund of income and excess profits taxes which it had paid pursuant to allegedly erroneous assessments for the taxable years 1951, 1952 and 1953. The United States has appealed.
The taxpayer manufactures cement, using as a principal ingredient limestone from its own quarries. Under section 23 (m) of the 1939 Internal Revenue Code, as applicable to the taxable years, it was entitled to a percentage deduction from gross income for depletion of these limestone deposits. The sole question here is whether the taxpayer’s limestone qualifies as “chemical grade limestone”, for which section 114(b) (4) (A) (iii) of the Internal Revenue Code authorizes a 15 per cent depletion allowance, or only as “calcium carbonates” for which the immediately preceding subsection allows a 10 per cent deduction. The district court, disagreeing with the Commissioner’s decision upon this issue, held that the mineral in suit is “chemical grade limestone” within the meaning of the statute.
Calcium carbonate in varying amount is the principal ingredient of limestone, which also contains smaller amounts of magnesium carbonate, silica and other substances. The percentage by weight of various ingredients constituting the limestone extracted from each of the taxpayer’s ten quarries involved in this appeal appears in the following table:
TYPICAL CHEMICAL ANALYSIS
Percentages
It will be observed that all but two of the quarries yield limestone containing less than 85 per cent calcium carbonate and less than 90 per cent total (calcium and magnesium) carbonates. The highest total carbonate content, 93.2 per cent, is found in the limestone from the taxpayer’s Mitchell, Indiana quarry.
In terms of its principal ingredient, limestone of every grade is calcium carbonate. Indeed, limestone is by definition a rock containing more than 50 per cent mineral calcium carbonate. It is the government’s position that only such limestone as contains more than 95 per cent total carbonates, or, conversely, less than 5 per cent of “impurities”, qualifies as “metallurgical grade” or “chemical grade” limestone as those phrases are used in section 114(b) (4) (A) (iii) to define that mineral for which a 15 per cent depletion allowance may be taken. The government relegates less “pure” limestone to the more general, and for tax purposes less advantageous, category of “calcium carbonates”.
The taxpayer approaches the problem of classification in a different way. It says that any limestone is of “chemical grade” if it is suitable for a commercial' use in which it undergoes some chemical reaction, and that the taxpayer so uses its limestone. Thus, in the taxpayer’s manufacture of cement, the raw materials are heated in kilns where the limestone undergoes chemical reactions and changes essential to the transformation into cement. Later, the cement, mixed' with aggregates and water, functions as a chemically reactive agent to produce concrete.
To resolve this controversy and to determine what Congress meant by “chemical grade limestone”, we have examined the legislative history of the subsection in question. The proposal to authorize a 15 per cent depletion allowance for “metallurgical grade” and “chemical grade” limestone was submitted with justifying testimony at the congressional! hearings on the 1950 amendments to the Internal Revenue Code and was adopted by the House of Representatives, but not by the Senate. Further hearings in 1951 resulted in the enactment of this amendment in the Revenue Act of 1951,. c. 521, sec. 319(a), 65 Stat. 452. Its proponents were representatives of the National Lime Association. The basic justifying document introduced at both the 1950 and the 1951 hearings was a survey report by Professor Kenneth Landes. 1 House Hearings, Revenue Revision of 1950, 338; 3 House Hearings, Revenue Revision of 1951, 1555.
The report begins with a discussion of the composition and grades of limestone, pointing out that the greater the calcium carbonate content, the higher the grade or quality of the limestone. It is stated that the only grades of limestone “satisfactory for metallurgical or chemical use” are those which contain not more than 4.6% of “impurities”. Silica, alumina and sulfur are classified as principal “impurities” in limestone.
The report lists the principal specific uses for which these high grades of limestone are required as “blast-furnace flux” in the conversion of iron ore into pig iron, “furnace lining” in the manufacture of steel, “lime burning and chemical manufacture”. Apart from use for lime making, “chemical stone” is characterized as that which is “used in making such products as soda ash and calcium carbide, and in the refining of beet sugar”.
The report then contrasts this relatively pure and high grade limestone with the estimated % of the national limestone product which is unsuitable for the above ■mentioned uses but is satisfactory “for concrete aggregate, road metal, railroad ballast, agricultural limestone, cement manufacture and other purposes where chemical purity is not essential”. Moreover, at the 1951 House hearings, Phillip Corson, a lime manufacturer, told the House committee, that the 15 per cent depletion allowance was sought only for “the small percentage of available limestone which meets the metallurgical and ■chemical grade requirement”, p. 1567. This statement was supported by testimony at the 1950 hearings that only 5 per cent of our national limestone reserve is of this high quality, p. 336. Finally, :in concluding the testimony at the 1951 hearings, Ralph Dickey, a representative of the National Lime Association, advised the committee that deposits of “metallurgical and chemical grade limestone * * * are much scarcer than coal deposits and are being depleted much more rapidly”. He concluded that since “Congress has * * * provided such [depletion] allowance for natural resources certainly no more critical in the economy than high grade limestone, we respectfully request that a percentage depletion allowance be granted to metallurgical and chemical grade limestone at the rate of 15 per cent”, p. 1551.
None of this testimony was challenged or contradicted. No one proposed that limestone other than grades of such purity and high carbonate content as the industry witnesses described be granted a 15 per cent depletion allowance. The witnesses made it clear that the “metallurgical and chemical grades” of limestone about which they were talking were the relatively scarce and very pure limestones which contained very little silica, alumina and sulfur, substances classified as impurities in this mineral. They showed that such high grade limestone was “metallurgical” in that one of its important uses occurs in the manufacture of pig iron and steel. They also showed that limestone of similarly high grade is “chemical” stone in that it is required for the manufacture of lime and such other chemicals as soda ash and calcium carbide.
Finally, they repeatedly stated that the mineral most suitable for cement is ordinary limestone of relatively low grade, preferably containing a substantial percentage of the impurity silica, which is needed in cement. They expressly excluded cement stone from the purer “chemical grade” required for the manufacture of such “chemicals” as lime, soda ash and calcium carbide. Any possible doubt about this must have been eliminated by the following interrogation of the witness Dickey by Congressman Jenkins during the 1951 hearings:
“Mr. Jenkins. * * *
“Does the cement industry require this metallurgical and chemical grade of limestone?
“Mr. Dickey. No sir; it does not. They do not care how much silica or alumina there is in the limestone.”
Since the phrase “chemical grade” limestone was first used in the 1950 bill and its restrictive meaning explained during hearings, and the same language was again incorporated in the 1951 legislation and again explained in the same way, we think Congress must have intended that the phrase have the restrictive connotation that the witnesses gave it. Had there been any suggestion to Congress that “chemical grade” meant suitable for any commercial use or process involving a chemical reaction, the legislative adoption of the phrase without definition would have been ambiguous. But there was no suggestion of such an alternative meaning. In these circumstances, we think it would be arbitrary to attribute to the critical phrase in the enacted statute a meaning significantly different from the one and only meaning that was clearly and repeatedly expressed throughout the legislative hearing.
We think the court below was right in concluding generally that “chemical grade limestone indicates a limestone of a higher degree of purity than its common commercial form”. Indeed, the courts seem to agree upon this connotation. Bookwalter v. Centropolis Crusher Co., 8th Cir. 1962, 305 F.2d 27, 33; Rock Hill Quarries Co. v. United States, E.D. Mo.1963, 217 F.Supp. 324. However, we think the court erred in deciding that the taxpayer’s limestone satisfied the statutory requirement. The product of each of the ten quarries in question contains substantially more than 5 per cent — eight of them, more than 10 per cent — of such impurities as silica, alumina and sulphur. Thus, it is not extraordinarily pure and is not suitable for the manufacture of lime or such chemicals as soda ash and calcium carbide. Therefore, it is not “chemical grade” within the meaning of the statute.
Most of the cases are in accord with this reasoning. E.g. Rock Hill Quarries Co. v. United States, supra; California Portland Cement Co. v. Riddell, S.D.Cal. 1958, 1959-1 U.S.Tax Cas. par. 9156; Dixie Products Co. v. United States, S.D.Fla.1957, 57-2 U.S.Tax Cas. par. 9933; Iowa Limestone Co., 1957, 28 T.C. 881, aff’d 8th Cir. 1959, 269 F.2d 398; but cf. Wagner Quarries Co. v. United States, N.D.Ohio 1957, 154 F.Supp. 655, aff’d 6th Cir. 1958, 260 F.2d 907.
The judgment will be reversed.
ORDER
Upon consideration of the motion by-appellee to amend this Court’s judgment, in the above entitled cases,
It is ordered that this Court’s judgment of June 17, 1964 be and it hereby-is amended to provide that the judgment of the District Court be reversed and' the cases be remanded for the entry of judgment in accordance with the opinion! of this Court.
. Very small quantities of various impurities are omitted.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"?
A. state or local tax
B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)
C. federal tax - business income tax (includes corporate and parnership)
D. federal tax - excess profits
E. federal estate and gift tax
F. federal tax - other
G. patents
H. copyrights
I. trademarks
J. trade secrets, personal intellectual property
Answer:
|
songer_respond1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. 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).
MORTGAGE SERVICES, INC., a West Virginia Corporation, Appellant, v. Ralph I. YARNELL, Appellee.
No. 74-1884.
United States Court of Appeals, Fourth Circuit.
Argued March 6, 1975.
Decided March 26, 1975.
William L. Jacobs, Parkersburg, W. Va. (Louie S. Davitian, Parkersburg, W. Va., on brief), for appellant.
Randall Metcalf (Arthur N. Gustke, Parkersburg, W. Va., on brief), for appellee.
Before BRYAN and BUTZNER, Circuit Judges, and- CLARKE, District Judge.
PER CURIAM:
The Appellant sought recovery from Appellee for alleged breach of contract for services. Appellee asserted several defenses including failure of Appellant to perform and fraudulent misrepresentation by Appellant.
The jury verdict on conflicting evidence was in favor of Appellee and the judgment entered on the verdict is the basis of this appeal.
Upon consideration of the briefs, record and oral argument, we find no error and accordingly, the judgment of the lower court is affirmed.
Question: This question concerns the first listed respondent. 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:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
NORTH DAKOTA et al. v. UNITED STATES
No. 88-926.
Argued October 31, 1989
Decided May 21, 1990
Stevens, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and White and O’Connor, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, post, p. 444. Brennan, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Marshall, Blackmun, and Kennedy, JJ., joined, post, p. 448.
Nicholas J. Spaeth, Attorney General of North Dakota, argued the cause for appellants. With him on the brief were Steven E. Noack and Laurie J. Loveland, Assistant Attorneys General.
Michael R. Lazerwitz argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Wallace, and Richard Farber.
Briefs of amici curiae urging reversal were filed for the National Alcoholic Beverage Control Association et al. by Jamen M. Goldberg; for the National Beer Wholesalers’ Association, Inc., by Ernest Gellhom and Erwin N. Griswold; and for the National Conference of State Legislatures et al. by Benna Ruth Solomon, Beate Bloch, and Barry Friedman.
Justice Stevens
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice White, and Justice O’Connor join.
The United States and the State of North Dakota exercise concurrent jurisdiction over the Grand Forks Air Force Base and the Minot Air Force Base. Each sovereign has its own separate regulatory objectives with respect to the area over which it has authority. The Department of Defense (DoD), which operates clubs and package stores located on those bases, has sought to reduce the price that it pays for alcoholic beverages sold on the bases by instituting a system of competitive bidding. The State, which has established a liquor distribution system in order to promote temperance and ensure orderly market conditions, wishes to protect the integrity of that system by requiring out-of-state shippers to file monthly reports and to affix a label to each bottle of liquor sold to a federal enclave for domestic consumption. The clash between the State’s interest in preventing thé diversion of liquor and the federal interest in obtaining the lowest possible price forms the basis for the Federal Government’s Supremacy Clause and pre-emption challenges to the North Dakota regulations.
I
The United States sells alcoholic beverages to military personnel and their families at clubs and package stores on its military bases. The military uses revenue from these sales to support a morale, welfare, and recreation program for personnel and their families..See 32 CFR §261.3 (1989); DoD Directive 1015.1 (Aug. 19, 1981). Before December 1985, no federal statute governed the purchase of liquor for these establishments. From December 19, 1985, to October 19, 1986, federal law required military bases to purchase alcoholic beverages only within their home State. See Pub. L. 99-190, §8099, 99 Stat. 1219. Effective October 30, 1986, Congress eliminated the requirement that the military purchase liquor from within the State and directed that distilled spirits be “procured from the most competitive source, price and other factors considered.” Pub. L. 99-661, §313, 100 Stat. 3853, 10 U. S. C. § 2488(a).
In accordance with this statute, the DoD has developed a joint-military purchasing program to buy liquor in bulk directly from the Nation’s primary distributors who offer the lowest possible prices. Purchases are made pursuant to a DoD regulation which provides:
“ ‘The Department of Defense shall cooperate with local, state, and federal officials to the degree that their duties relate to the provisions of this chapter. However, the purchase of all alcoholic beverages for resale at any camp, post, station, base, or other DoD installation within the United States shall be in such a manner and under such conditions as shall obtain for the government the most advantageous contract, price and other considered factors. These other factors shall not be construed as meaning any submission to state control, nor shall cooperation be construed or represented as an admission of any legal obligation to submit to state control, pay state or local taxes, or purchase alcoholic beverages within geographical boundaries or at prices or from suppliers prescribed by any state.’” 32 CFR §261.4 (1989).
Since long before the enactment of the most recent procurement statute, the State of North Dakota has regulated the importation and distribution of alcoholic beverages within its borders. See N. D. Cent. Code ch. 5 (1987 and Supp. 1989). Under the State’s regulatory system, there are three levels of liquor distributors: out-of-state distillers/suppliers, state-licensed wholesalers, and state-licensed retailers. Distillers/suppliers may sell to only licensed wholesalers or federal enclaves. N. D. Admin. Code §84-02-01-05(2) (1986). Licensed wholesalers, in turn, may sell to licensed retailers, other licensed wholesalers, and federal enclaves. N. D. Cent. Code §5-03-01 (1987). Taxes are imposed at both levels of distribution. N. D. Cent. Code §5-03-07 (1987); N. D. Cent. Code ch. 57-39.2 (Supp. 1989). In order to monitor the importation of liquor, the State since 1978 has required all persons bringing liquor into the State to file monthly reports documenting the volume of liquor they have imported. The reporting regulation provides:
“All persons sending or bringing liquor into North Dakota shall file a North Dakota Schedule A Report of all shipments and returns for each calender month with the state treasurer. The report must be postmarked on or before the fifteenth day of the following month.” N. D. Admin. Code §84-02-01-05(1) (1986).
Since 1986, the State has also required out-of-state distillers who sell liquor directly to a federal enclave to affix labels to each individual item, indicating that the liquor is for domestic consumption only within the federal enclave. The labels may be purchased from the state treasurer for a small sum or printed by the distillers/suppliers themselves according to a state-approved format. App. 34. The labeling regulation provides:
“All liquor destined for delivery to a federal enclave in North Dakota for domestic consumption and not transported through a licensed North Dakota wholesaler for delivery to such bona fide federal enclave in North Dakota shall have clearly identified on each individual item that such shall be for consumption within the federal enclave exclusively. Such identification must be in a form and manner prescribed by the state treasurer.” N. D. Admin. Code §84-02-01-05(7) (1986).
Within the State of North Dakota, the United States operates two military bases: Grand Forks Air Force Base and Minot Air Force Base. The State and Federal Government exercise concurrent jurisdiction over both. Shortly after the effective date of the procurement statute permitting the military to make purchases from out of state, the state treasurer conducted a meeting with out-of-state suppliers to explain the labeling and reporting requirements. App. 34. Five out-of-state distillers and importers thereupon informed federal military procurement officials that they would not ship liquor to the North Dakota bases because of the burden of complying with the North Dakota regulations. A sixth supplier, Kobrand Importers, Inc., increased its prices from between $0.85 and $20.50 per case to reflect the cost of labeling and reporting.
The United States instituted this action in the United States District Court for the District of North Dakota seeking declaratory and injunctive relief against the application of the State’s regulations to liquor destined for federal enclaves. The District Court denied the United States’ cross-motion for summary judgment and granted the State’s motion. The court reasoned that there was no conflict between the state and federal regulations because the state regulations did not prevent the Government from obtaining beverages at the “lowest cost.” 675 F. Supp. 555, 557 (1987). A divided United States Court of Appeals for the Eighth Circuit reversed. 856 F. 2d 1107 (1988). While recognizing that “nothing in the record compels us to believe that the regulations are a pretext to require in-state purchases,” id., at 1113, the majority held that the regulations impermissibly made out-of-state distillers less competitive with local wholesalers. Ibid. Chief Judge Lay argued in dissent that the effect on the Federal Government was a permissible incident of regulations passed pursuant to the State’s powers under the Twenty-first Amendment. Id., at 1115-1116. We noted probable jurisdiction, 489 U. S. 1095 (1989), and now reverse.
II
The Court has considered the power of the States to pass liquor control regulations that burden the Federal Government in four cases since the ratification of the Twenty-first Amendment. See Collins v. Yosemite Park & Curry Co., 304 U. S. 518 (1938); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324 (1964); United States v. Mississippi Tax Comm’n, 412 U. S. 363 (1973) (Mississippi Tax Comm’n I); United States v. Mississippi Tax Comm’n, 421 U. S. 599 (1975) (Mississippi Tax Comm’n II); see also Johnson v. Yellow Cab Transit Co., 321 U. S. 383 (1944). In each of those cases, we concluded that the State has no authority to regulate in an area or over a transaction that fell outside of its jurisdiction. In Collins, we held that the Twenty-first Amendment did not give the States the power to regulate the use of alcohol within a national park over which the Federal Government had exclusive jurisdiction. In Hostetter, we held that the Twenty-first Amendment conferred no authority to license the sale of tax-free liquors at an airport for delivery to foreign destinations made under the supervision of the United States Bureau of Customs. Mississippi Tax Comm’n I held that the State had no authority to regulate a transaction between an out-of-state liquor supplier and a federal military base within the exclusive federal jurisdiction. And, in Mississippi Tax Comm’n II, we held that the State has no authority to tax directly a federal instrumentality on an enclave over which the United States exercised concurrent jurisdiction.
At the same time, however, within the area of its jurisdiction, the State has “virtually complete control” over the importation and sale of liquor and the structure of the liquor distribution system. See California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 110 (1980); see also Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 712 (1984); California Board of Equalization v. Young’s Market Co., 299 U. S. 59 (1936). The Court has made clear that the States have the power to control shipments of liquor during their passage through their territory and to take appropriate steps to prevent the unlawful diversion of liquor into their regulated intrastate markets. In Hostetter, we stated that our decision in Collins, striking down the California Alcoholic Beverage Control Act as applied to an exclusive federal reservation, might have been otherwise if “California had sought to regulate or control the transportation of the liquor there involved from the time of its entry into the State until its delivery at the national park, in the interest of preventing unlawful diversion into her territory.” 377 U. S., at 333. We found that the state licensing law there under attack was unlawful because New York “ha[d] not sought to regulate or control the passage of intoxicants through her territory in the interest of preventing their unlawful diversion into the internal commerce of the State. As the District Court emphasized, this cáse does not involve ‘measures aimed at preventing unlawful diversion or use of alcoholic beverages within New York.’ 212 F. Supp., at 386.” Id., at 333-334.
In Mississippi Tax Comm’n I, supra, after holding that the State could n'ot impose its normal markup on sales to the military bases, we added that “a State may, in the absence of conflicting federal regulation, properly exercise its police powers to regulate and control such shipments during their passage through its territory insofar as necessary to prevent the ‘unlawful diversion’ of liquor ‘into the internal commerce of the State.’” 412 U. S., at 377-378 (citations omitted).
The two North Dakota regulations fall within the core of the State’s power under the Twenty-first Amendment. In the interest of promoting temperance, ensuring orderly market conditions, and raising revenue, the State has established a comprehensive system for the distribution of liquor within its borders. That system is unquestionably legitimate. See Carter v. Virginia, 321 U. S. 131 (1944); California Board of Equalization v. Young’s Market Co., 299 U. S. 59 (1936). The requirements that an out-of-state supplier which transports liquor into the State affix a label to each bottle of liquor destined for delivery to a federal enclave and that it report the volume of liquor it has transported are necessary components of the regulatory regime. Because liquor sold at Grand Forks and Minot Air Force Bases has been purchased directly from out-of-state suppliers, neither the markup nor the state taxes paid by liquor wholesalers and retailers in North Dakota is reflected in the military purchase price. Moreover, the federal enclaves are not governed by state laws with respect to the sale of intoxicants; the military establishes the type of liquor it sells, the minimum age of buyers, and the days and times its package stores will be open. The risk of diversion into the retail market and disruption of the liquor distribution system is thus both substantial and real. It is necessary for the State to record the volume of liquor shipped into the State and to identify those products which have not been distributed through the State’s liquor distribution system. The labeling and reporting requirements unquestionably serve valid state interests. Given the special protection afforded to state liquor control policies by the Twenty-first Amendment, they are supported by a strong presumption of validity and should not be set aside lightly. See, e. g., Capital Cities Cable, Inc. v. Crisp, 467 U. S., at 714.
Ill
State law may run afoul of the Supremacy Clause in two distinct ways: The law may regulate the Government directly or discriminate against it, see McCulloch v. Maryland, 4 Wheat. 316, 425-437 (1819), or it may conflict with an affirmative command of Congress. See Gibbons v. Ogden, 9 Wheat. 1, 211 (1824); see also Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 712-713 (1985). The Federal Government’s attack on the regulations is based on both grounds of invalidity.
The Government argues that the state provisions governing the distribution of liquor by out-of-state shippers “regulate” governmental actions and are therefore invalid directly under the Supremacy Clause. The argument is unavailing. State tax laws, licensing provisions, contract laws, or even “a statute or ordinance regulating the mode of turning at the corner of streets,” Johnson v. Maryland, 254 U. S. 51, 56 (1920), no less than the reporting and labeling regulations at issue in this case, regulate federal activity in the sense that they make it more costly for the Government to do its business. At one time, the Court struck down many of these state regulations, see Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 222 (1928) (state tax on military contractor); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842) (tax on federal employee); Gillespie v. Oklahoma, 257 U. S. 501 (1922) (tax on lease of federal property); Weston v. City Council of Charleston, 2 Pet. 449 (1829) (tax on federal bond), on the theory that they interfered with “the constitutional means which have been legislated by the government of the United States to carry into effect its powers.” Dobbins, 16 Pet., at 449. Over 50 years ago, however, the Court decisively rejected the argument that any state regulation which indirectly regulates the Federal Government’s activity is unconstitutional, see James v. Dravo Contracting Co., 302 U. S. 134 (1937), and that view has now been “thoroughly repudiated.” South Carolina v. Baker, 485 U. S. 505, 520 (1988); see also California Board of Equalization v. Sierra Summit, Inc., 490 U. S. 844, 848 (1989); Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 174 (1989).
The Court has more recently adopted a functional approach to claims of governmental immunity, accommodating of the full range of each sovereign’s legislative authority and respectful of the primary role of Congress in resolving conflicts between the National and State Governments. See United States v. County of Fresno, 429 U. S. 452, 467-468 (1977); cf. Garcia v. San Antonio Metropolitan Transit Auth., 469 U. S. 528 (1985). Whatever burdens are imposed on the Federal Government by a neutral state law regulating its suppliers “are but normal incidents of the organization within the same territory of two governments.” Helvering v. Gerhardt, 304 U. S. 405, 422 (1938); see also South Carolina v. Baker, 485 U. S., at 520-521; Penn Dairies, Inc. v. Milk Control Comm’n of Pennsylvania, 318 U. S. 261, 271 (1943); Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 487 (1939). A state regulation is invalid only if it regulates the United States directly- or discriminates against the Federal Government or those with whom it deals. South Carolina v. Baker, 485 U. S., at 523; County of Fresno, 429 U. S., at 460. In addition, the question whether a state regulation discriminates against the Federal Government cannot be viewed in isolation. Rather, the entire regulatory system should be analyzed to determine whether it is discriminatory “with regard to the economic burdens that result.” Washington v. United States, 460 U. S. 536, 544 (1983). Claims to any further degree of immunity must be resolved under principles of congressional pre-emption. See, e. g., Penn Dairies, Inc. v. Milk Control Comm’n, 318 U. S., at 271; James v. Dravo Contracting Co., 302 U. S., at 161.
Application of these principles to the North Dakota regulations demonstrates that they do not violate the intergovernmental immunity doctrine. There is no claim in this case, nor could there be, that North Dakota regulates the Federal Government directly. See United States v. New Mexico, 455 U. S. 720 (1982); Hancock v. Train, 426 U. S. 167 (1976); Mississippi Tax Comm’n II, 421 U. S., at 608-610; Mayo v. United States, 319 U. S. 441, 447 (1943). Both the reporting requirement and the labeling regulation operate against suppliers, not the Government, and concerns about direct interference with the Federal Government, see City of Detroit v. Murray Corp. of America, 355 U. S. 489, 504-505 (1958) (opinion of Frankfurter, J.), therefore are not implicated. In this respect, the regulations cannot be distinguished from the price control regulations and taxes imposed on Government contractors that we have repeatedly upheld against constitutional challenge. See United States v. City of Detroit, 355 U. S. 466 (1958); Penn Dairies, Inc., 318 U. S., at 279-280; Alabama v. King & Boozer, 314 U. S. 1, 8 (1941).
Nor can it be said that the regulations discriminate against the Federal Government or those with whom it deals. The nondiscrimination rule finds its reason in the principle that the States may not directly obstruct the activities of the Federal Government. McCulloch v. Maryland, 4 Wheat., at 425-437. Since a regulation imposed on one who deals with the Government has as much potential to obstruct governmental functions as a regulation imposed on the Government itself, the Court has required that the regulation be one that is imposed on some basis unrelated to the object’s status as a Government contractor or supplier, that is, that it be imposed equally on other similarly situated constituents of the State. See, e. g., United States v. County of Fresno, 429 U. S., at 462-464. Moreover, in analyzing the constitutionality of a state law, it is not appropriate to look to the most narrow provision addressing the Government or those with whom it deals. A state provision that appears to treat the Government differently on the most specific level of analysis may, in its broader regulatory context, not be discriminatory. We have held that “[t]he State does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them.” Washington v. United States, 460 U. S., at 544-545.
The North Dakota liquor control regulations, the regulatory regime of which the Government complains, do not disfavor the Federal Government but actually favor it. The labeling and reporting regulations are components of an extensive system of statewide regulation that furthers legitimate interests in promoting temperance and controlling the distribution of liquor, in addition to raising revenue. The system applies to all liquor retailers in the State. In this system, the Federal Government is favored over all those who sell liquor in the State.' All other liquor retailers are required to purchase from state-licensed wholesalers, who are legally bound to comply with the State’s liquor distribution system. N. D. Cent. Code §5-03-01.1 (1987). The Government has the option, like the civilian retailers in the State, to purchase liquor from licensed wholesalers. However, alone among retailers in the State, the Government also has the option to purchase liquor from out-of-state wholesalers if those wholesalers comply with the labeling and reporting regulations. The system does not discriminate “with regard to the economic burdens that result.” Washington, 460 U. S., at 544. A regulatory regime which so favors the Federal Government cannot be considered to discriminate against it.
• IV
The conclusion that the labeling regulation does not violate the intergovernmental immunity doctrine does not end the inquiry into whether the regulation impermissibly interferes with federal activities. Congress has the power to confer immunity from state regulation on Government suppliers beyond that conferred by the Constitution alone, see, e. g., United States v. New Mexico, 455 U. S., at 737-738; Penn Dairies, Inc., 318 U. S., at 275, even when the state regulation is enacted pursuant to the State’s powers under the Twenty-first Amendment. Capital Cities Cable, Inc. v. Crisp, 467 U. S., at 713. But when the Court is asked to set aside a regulation at the core of the State’s powers under the Twenty-first Amendment, as when it is asked to recognize an implied exemption from state taxation, see Rockford Life Ins. Co. v. Illinois Dept. of Revenue, 482 U. S. 182, 191 (1987), it must proceed with particular care. Capital Cities Cable, 467 U. S., at 714. Congress has not here spoken with sufficient clarity to pre-empt North Dakota’s attempt to protect its liquor distribution system.
The Government’s claim that the regulations are preempted rests upon a federal statute and federal regulation. The federal statute is 10 U. S. C. §2488, which governs the procurement of alcoholic beverages by nonappropriated fund instrumentalities. It provides simply that purchases of alcoholic beverages for resale on military installations “shall be made from the most competitive source, price and other factors considered,” § 2488(a)(1), but that malt beverages and wine shall be purchased from sources within the State in which the installation is located. It may be inferred from the latter provision as well as from the provision, elsewhere in the Code, that alcoholic beverages purchased for resale in Alaska and Hawaii must be purchased in state, Act of Oct. 30, 1986, Pub. L. 99-591, §9090, 100 Stat. 3341-116, that Congress intended for the military to be free in the other 48 States to purchase liquor from out-of-state wholesalers. It follows that the States may not directly restrict the military from purchasing liquor out of state. That is the central lesson of our decisions in Paul v. United States, 371 U. S. 245 (1963); United States v. Georgia Public Service Comm’n, 371 U. S. 285 (1963); Public Utilities Comm’n of California v. United States, 355 U. S. 534 (1958); and Leslie Miller, Inc. v. Arkansas, 352 U. S. 187 (1956), in which we invalidated state regulations that prohibited what federal law required. We stated in Paul that there was a “collision... clear and acute,” between the federal law which required competitive bidding among suppliers and the state law which directly limited the extent to which suppliers could compete. 371 U. S., at 253.
It is one thing, however, to say that the State may not pass regulations which directly obstruct federal law; it is quite another to say that they cannot pass regulations which incidentally raise the costs to the military. Any number of state laws may make it more costly for the military to purchase liquor. As Chief Judge Lay observed in dissent, “[c]ompliance with regulations regarding the importation of raw materials, general operations of the distillery or brewery, treatment of employees, bottling, and shipping necessarily increase the cost of liquor.” 856 F. 2d, at 1116. Highway tax laws and safety laws may make it more costly for the military to purchase from out-of-state shippers.
The language used in the 1986 procurement statute does not expressly pre-empt any of these state regulations or address the problem of unlawful diversion of liquor from military bases into the civilian market. It simply states that covered alcoholic beverages shall be obtained from the most competitive source, price and other factors considered. As the District Court observed, however, “‘[IJowest cost’ is a relative term.” 675 F. Supp., at 557. The fact that the reporting and labeling regulations, like safety laws or minimum wage laws, increase the costs for out-of-state shippers does not prevent the Government from obtaining liquor at the most competitive price, but simply raises that price. The procurement statute does not cut such a wide swath through state law as to invalidate the reporting and labeling regulations.
In this case the most competitive source for alcoholic beverages are out-of-state distributors whose prices are lower than those charged by North Dakota wholesalers regardless of whether the labeling and reporting requirements are enforced. The North Dakota regulations, which do not restrict the parties from whom the Government may purchase liquor or its ability to engage in competitive bidding, but at worst raise the costs of selling to the military for certain shippers, do not directly conflict with the federal statute.
V
The DoD regulation restates, in slightly different language, the statutory requirement that distilled spirits be “procured from the most competitive source, price and other factors considered,” but it does not purport to carry a greater pre-emptive power than the statutory command itself. It is Congress — not the DoD — that has the power to pre-empt otherwise valid state laws, and there is no language in the relevant statute that either pre-empts state liquor distribution laws or delegates to the DoD the power to pre-empt such state laws.
Nor does the text of the DoD regulation itself purport to pre-empt any state laws. See California Coastal Comm’n v. Granite Rock Co., 480 U. S. 572, 583 (1987); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S., at 717-718. It directs the military to consider various factors in determining “the most advantageous contract, price and other considered factors,” but that command cannot be understood to pre-empt state laws that have the incidental effect of raising costs for the military. Indeed, the regulation specifically envisions some regulation by state law, for it provides that the Department “shall cooperate with local [and] state... officials... to the degree that their duties relate to the provisions of this chapter.” The regulation does admonish that such cooperation should not be construed as an admission that the military is obligated to submit to state control or required to buy from suppliers located within the State or prescribed by the State. The North Dakota regulations, however, do not require the military to submit to state control or to purchase alcoholic beverage from suppliers within the State or prescribed by the State. The DoD regulation has nothing to say about labeling or reporting by out-of-state suppliers.
When the Court is confronted with questions relating to military discipline and military operations, we properly defer to the judgment of those who must lead our Armed Forces in battle. But in questions relating to the allocation of power between the Federal and State Governments on civilian commercial issues, we heed the command of Congress without any special deference to the military’s interpretation of that command.
The present record does not establish the precise burdens the reporting and labeling regulations will impose on the Government, but there is no evidence that they will be substantial. The reporting requirement has been in effect since 1978 and there is no evidence that it has caused any supplier to raise its costs or stop supplying the military. Although the labeling regulation has caused a few suppliers either to adjust their prices or to cease direct shipments to the bases, there has been no showing that there are not other suppliers willing to enter the market and there is no indication that the Government has made any attempt to secure other out-of-state suppliers. The cost of the labels is approximately three to five cents if purchased from the state treasurer, and the distillers have the right to print their own labels if they prefer. App. 34. Even in the initial stage of enforcing the requirement for the two bases in North Dakota, various distillers and suppliers have already notified the state treasurer that they intend to comply with the new regulations. Ibid. And, even if its worst predictions are fulfilled, the military-will still be the most favored customer in the State.
It is Congress, not this Court, which is best situated to evaluate whether the federal interest in procuring the most inexpensive liquor outweighs.the State’s legitimate interest in preventing diversion. Congress has already effected a compromise by excluding beer and wine and the States of Hawaii and Alaska from the 1986 statute. It may also decide to prohibit labels entirely or prescribe their use on a nationwide basis. It would be both an unwise and an unwarranted extension of the intergovernmental immunity doctrine for this Court to hold that the burdens associated with the labeling and reporting requirements — no matter how trivial they may prove to be — are sufficient to make them unconstitutional. The judgment of the Court of Appeals is reversed.
It is so ordered.
Congress kept the rule requiring in-state purchases of distilled spirits for installations in Hawaii and Alaska and of beer and wine for installations throughout the United States. Act of Oct. 30, 1986, Pub. L. 99-591, §9090, 100 Stat. 3341-116.
The parties stipulated to concurrent jurisdiction but offered no further information. App. 16. A territory under concurrent jurisdiction is generally subject to the plenary authority of both the Federal Government and the State for the purposes of the regulation of liquor as well as the exercise of other police powers. See, e. g., United States v. Mississippi Tax Comm’n, 412 U. S. 363, 379-380 (1973); James v. Dravo Contracting Co., 302 U. S. 134, 141-142 (1937); Surplus Trading Co. v. Cook, 281 U. S. 647, 650-651 (1930). The parties have not argued that North Dakota ceded its authority to regulate the importation of liquor destined for federal bases.
The five are Heublein, Inc., James B. Beam, Joseph Seagram & Sons, Inc., Somerset Importers, and Hiram Walker & Sons, Inc. App. 26.
Section 2 of the Twenty-first Amendment provides:
“The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”
A member of the National Conference of State Liquor Administrators executed an affidavit describing the following types of misconduct that North Dakota liquor regulations are intended to prevent:
“a. Diversion of alcohol off a federal enclave in Hawaii by a dependent of a Department of Defense employee in quantities large enough to supply the dependent’s own liquor store in the private sector.
“b. Loss of quantities of alcohol from the time the supplier delivered the product to the Department of Defense personnel to the time when the product was to be inventoried or taken by Department of Defense personnel to another facility.
“c. Purchases of alcohol is [sic] quantities so large that the only logical explanation is that the alcohol was diverted from the military base into a state’s stream of commerce. This occurred in the state of Washington as documented by the Washington State Liquor Control Board’s February 20, 1987, letter to Mr. Chapman Cox, Assistant Secretary of Defense at the Pentagon in Washington, D. C. A copy of that letter is attached hereto as Attachment 1. The Washington State Liquor Control Board letter describes purchases of alcohol in quantities so large that on-base personnel would have had to individually consume 85 cases each during the fiscal year 1986. This amounts to 1,020 bottles or approximately 5 bottles per person per day, including Sundays and holidays.” App. 36.
Cf. Rice v. Rehner, 463 U. S. 713, 724 (1983) (“The State has an unquestionable interest in the liquor traffic that occurs within its borders”).
Thus, for example, in Public Utilities Comm’n of California v. United States, 355 U. S. 534 (1958), we put to one side “eases where, absent a conflicting federal regulation, a State seeks to impose safety or other requirements on a contractor who does business for the United States.” Id., at 543. We invalidated the state law because there was a clear conflict between the state policy of regulation of negotiated rates and the federal policy, expressed in statute and regulation, of negotiated rates. Id., at 544. Similarly, in Leslie Miller, Inc. v. Arkansas, 352 U. S. 187 (1956), the state licensing law came into direct conflict with “the action which Congress and the Department of Defense ha[d] taken to insure the reliability of persons and companies contracting with the Federal Government.” Id., at 190. Paul v. United States, 371 U. S. 245 (1963), involved the Armed Services Procurement Act and regulations promulgated thereunder. We stated that the collision between the federal policy, expressed in these laws, and the state policy was “clear and acute.” Id., at 253. In United States v. Georgia Public Service Comm’n, 371 U. S. 285 (1963), we relied upon the passage by Congress of the Federal Property and Administrative Services Act, which spoke too clearly to permit any state regulation of competitive bidding or negotiation.
In discussing why it was proper to convene a three-judge court, the Court in Georgia Public Service Comm’n did state: “Direct conflict between a state law and federal constitutional provisions raises of course a question under the Supremacy Clause but one of broader scope than where the alleged conflict is only between a state statute and a federal statute that might be resolved by the construction given either the state or the federal law.” Id., at 287 (citing Kesler v. Department of Public Safety of Utah, 369 U. S. 153 (1962)). That statement constituted an explanation for the assertion of jurisdiction, not an expression of a general principle of implied intergovernmental immunity. Under 28 U. S. C. § 2281 (1970 ed.), a three-judge court was required whenever a state statute was sought to be enjoined “upon the ground of the unconstitutionality of such statute”; Kesler held that such a court was required, and the Constitution was implicated, when the conflicting state and federal laws were clear. Georgia Public Service Comm’n raised a “broader” question because it could not “be resolved by the construction given either the state or the federal law.” 371 U. S., at 287. In Swift & Co. v. Wickham, 382 U. S. 111 (1965), we overruled Kesler and explained that the variant of Supremacy Clause jurisprudence there discussed was that which is implicated when “a state
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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111
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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.
JEFFERSON et al. v. HACKNEY, COMMISSIONER OF PUBLIC WELFARE, et al.
No. 70-5064.
Argued February 22, 1972
Decided May 30, 1972
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Powell, JJ., joined. Stewart, J., filed a statement joining in Part III of the Court’s opinion, -post, p. 551. Douglas, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 551. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, and in Part I of which Stewart, J., joined, post, p. 558.
Steven J. Cole argued the cause for appellants. With him on the briefs were Henry A. Freedman, Ed J. Polk, Edward V. Sparer, and Carl Rachlin.
Pat Bailey, Assistant Attorney General of Texas, argued the cause for appellees. With him on the brief were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and J. C. Davis, Assistant Attorney General.
Evelle J. Younger, Attorney General, and Elizabeth Palmer and Jerold A. Prod, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging affirmance.
Solicitor General Griswold, by invitation of the Court, filed a memorandum for the United States as amicus curiae.
Mr. Justice Rehnquist
delivered the opinion of the Court.
Appellants in this case challenge certain computation procedures that the State of Texas uses in its federally assisted welfare program. Believing that neither the Constitution nor the federal welfare statute prohibits the State from adopting these policies, we affirm the judgment of the three-judge court below upholding the state procedures.
I
Appellants are Texas recipients of Aid to Families With Dependent Children (AFDC). They brought two class actions, which were consolidated in the United States District Court for the Northern District of Texas, seeking in-junctive and declaratory relief against state welfare officials. A three-judge court was convened pursuant to 28 U. S. C. § 2281.
The Texas State Constitution provides a ceiling on the amount the State can spend on welfare assistance grants. In order to allocate this fixed pool of welfare money among the numerous individuals with acknowledged need, the State has adopted a system of percentage grants. Under this system, the State first computes the monetary needs of individuals eligible for relief under each of the federally aided categorical assistance programs. Then, since the constitutional ceiling on welfare is insufficient to bring each recipient up to this full standard of need, the State applies a percentage reduction factor in order to arrive at a reduced standard of need in each category that the State can guarantee.
Appellants challenge the constitutionality of applying a lower percentage reduction factor to AFDC than to the other categorical assistance programs. They claim a violation of equal protection because the proportion of AFDC recipients who are black or Mexican-American is higher than the proportion of the aged, blind, or disabled welfare recipients who fall within these minority groups. Appellants claim that the distinction between the programs is not rationally related to the purposes of the Social Security Act, and violates the Fourteenth Amendment for that reason as well. In their original complaint, appellants also argued that any percentage-reduction system violated § 402 (a) (23) of the Social Security Act of 1935, as amended, 81 Stat. 898, 42 U. S. C. § 602 (a) (23), which required each State to make certain cost-of-living adjustments to its standard of need.
The three-judge court rejected appellants’ constitutional arguments, finding that the Texas system is neither racially discriminatory nor unconstitutionally arbitrary. The court did, however, accept the statutory claim that Texas’ percentage reductions in the AFDC program violate the congressional command of §402 (a) (23). 304 F. Supp. 1332 (ND Tex. 1969).
Subsequent to that judgment, this Court decided Rosado v. Wyman, 397 U. S. 397 (1970). Rosado held that, although § 402 (a) (23) required States to make cost-of-living adjustments in their standard-of-need calculations, it did not prohibit use of percentage-reduction systems that limited the amount of welfare assistance actually paid. 397 U. S., at 413. This Court then vacated and remanded the first Jefferson judgment for further proceedings consistent with Rosado. 397 U. S. 821 (1970).
On remand, the District Court entered a new judgment, denying all relief. Then, in a motion to amend the judgment, appellants raised a new statutory claim. They argued for the first time that although a percentage-reduction system may be consistent with the statute, the specific procedures that Texas uses for computing that reduction violate the congressional enactment. The District Court rejected this argument and denied without opinion appellants’ motion to amend the judgment. This appeal under 28 U. S. C. § 1253 then followed, and we noted probable jurisdiction. 404 U. S. 820 (1971).
II
Appellants’ statutory argument relates to the method that the State uses to compute the percentage reduction when the recipient also has some outside income. Texas, like many other States, first applies the percentage-reduction factor to the recipient’s standard of need, thus arriving at a reduced standard of need that the State can guarantee for each recipient within the present budgetary restraints. After computing this reduced standard of need, the State then subtracts any nonexempt income in order to arrive at the level of benefits that the recipient needs in order to reach his reduced standard of need. This is the amount of welfare the recipient is given.
Under an alternative system used by other States, the order of computation is reversed. First, the outside income is subtracted from the standard of need, in order to determine the recipient’s “unmet need.” Then, the percentage-reduction factor is applied to the unmet need, in order to determine the welfare benefits payable.
The two systems of accounting for outside income yield different results. Under the Texas system all welfare recipients with the same needs have the same amount of money available each month, whether or not they have outside income. Since the outside income is applied dollar for dollar to the reduced standard of need, which the welfare department would otherwise pay in full, it does not result in a net improvement in the financial position of the recipient. Under the alternative system, on the other hand, any welfare recipient who also has outside income is in a better financial position because of it. The reason is that the percentage-reduction factor there is applied to the “unmet need,” after the income has been subtracted. Thus, in effect, the income-earning recipient is able to “keep” all his income, while he receives only a percentage of the remainder of his standard of need.
Each of the two systems has certain advantages. Appellants note that under the alternative system there is a financial incentive for welfare recipients to obtain outside income. The Texas computation method eliminates any such financial incentive, so long as the outside income remains less than the recipient’s reduced standard of need. However, since Texas’ pool of available welfare funds is fixed, any increase in benefits paid to the working poor would have to be offset by reductions elsewhere. Thus, if Texas were to switch to the alternative system of recognizing outside income, it would be forced to lower its percentage-reduction factor, in order to keep down its welfare budget. Lowering the percentage would result in less money for those who need the welfare benefits the most — those with no outside income — and the State has been unwilling to do this.
Striking the proper balance between these competing policy considerations is, of course, not the function of this Court. “There is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.” King v. Smith, 392 U. S. 309, 318-319 (1968) (footnotes omitted). So long as the State’s actions are not in violation of any specific provision of the Constitution or the Social Security Act, appellants’ policy arguments must be addressed to a different forum.
Appellants assert, however, that the Texas computation procedures are contrary to § 402 (a) (23):
“(a) A State plan for aid and services to needy families with children must
“(23) provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any máximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.”
Recognizing that this statutory language, by its terms, hardly provides much support for their theory, appellants seek to rely on what they perceive to have been the broad congressional purpose in enacting the provision.
In Rosado v. Wyman, supra, the Court reviewed the history of this section and rejected the argument that it had worked any radical shift in the AFDC program. Id., at 414 and n. 17. AFDC has long been referred to as a “scheme of cooperative federalism,” King v. Smith, 392 U. S., at 316, and the Rosado Court dismissed as “adventuresome” any interpretation of § 402 (a) (23) that would deprive the States of their traditional discretion to set the levels of payments. 397 U. S., at 414-415 and n. 17. Instead, the statute was meant to require the States to make cost-of-living adjustments to their standards of need, thereby serving “two broad purposes”:
“First, to require States to face up realistically to the magnitude of the public assistance requirement and lay bare the extent to which their programs fall short of fulfilling actual need; second, to prod the States to apportion their payments on a more equitable basis,” Id., at 412-413.
Texas has complied with these two requirements. Effective May 1, 1969, the standard of need for AFDC recipients was raised 11% to reflect the rise in the cost of living, and the State shifted from a maximum-grant system to its present percentage-reduction system. In this way, the State has fairly recognized and exposed the precise level of unmet need, and by using a percentage-reduction system it has attempted to apportion the State’s limited benefits more equitably.
Although Texas has thus responded to the “two broad purposes” of §402 (a) (23), appellants argue that Congress also intended that statute to increase the total number of recipients of AFDC, so that more people would qualify for the subsidiary benefits that are dependent on receipt of AFDC cash assistance. The Texas computation procedures are thought objectionable since they do not increase the welfare rolls to quite the same extent as would the alternative method of recognizing outside income.
We do not agree that Congress intended § 402 (a) (23) to invalidate any state computation procedures that do not absolutely maximize individual eligibility for subsidiary benefits. The cost-of-living increase that Congress mandated would, of course, generally tend to increase eligibility, but there is nothing in the legislative history indicating that this was part of the statutory purpose. Indeed, at the same time Congress enacted § 402 (a) (23) it included another section designed to induce States to reduce the number of individuals eligible for the AFDC program. Thus, what little legislative history there is on the point, see Rosado v. Wyman, 397 U. S., at 409-412, tends to undercut appellants’ theory. See Lampton v. Bonin, 304 F. Supp. 1384, 1391-1392 (ED La. 1969) (Cassibry, J., dissenting). See generally Note, 58 Geo. L. J. 591 (1970).
Appellants also argue that the Texas system should be held invalid because the alternative computation method results in greater work incentives for welfare recipients. The history and purpose of the Social Security Act do indicate Congress’ desire to help those on welfare become self-sustaining. Indeed, Congress has specifically mandated certain work incentives in §402 (a)(8). There is no dispute here, however, about Texas’ compliance with these very detailed provisions for work incentives. Neither their inclusion in the Act nor the language used by Congress in other sections of the Act supports the inference that Congress mandated the States to change their income-computation procedures in other, completely unmentioned areas.
Nor are appellants aided by their reference to Social Security Act §402 (a) (10), 42 U. S. C. § 602 (a) (10), which provides that AFDC benefits must “be furnished with reasonable promptness to all eligible individuals.” That section was enacted at a time when persons whom the State had determined to be eligible for the payment of benefits were placed on waiting lists, because of the shortage of state funds. The statute. was intended to prevent the States from denying benefits, even temporarily, to a person who has been found fully qualified for aid. See H. R. Rep. No. 1300, 81st Cong., 1st Sess., 48, 148 (1949); 95 Cong. Rec. 13934 (remarks of Rep. Forand). Section 402 (a) (10) also prohibits a State from creating certain exceptions to standards specifically enunciated in the federal Act. See, e. g., Townsend v. Swank, 404 U. S. 282 (1971). It does not, however, enact by implication a generalized federal criterion to which States must adhere in their computation of standards of need, income, and benefits. Such an interpretation would be an intrusion into an area in which Congress has given the States broad discretion, and we cannot accept appellants’ invitation to change this longstanding statutory scheme simply for policy consideration reasons of which we are not the arbiter.
I — I h — I H-t
We turn, then, to appellants'" claim that the Texas system of percentage reductions violates the Fourteenth Amendment. Appellants believe that once the State has computed a standard of need for each recipient, it is arbitrary and discriminatory to provide only 75% of that standard to AFDC recipients, while paying 100% of recognized need to the aged, and 95% to the disabled and the blind. They argue that if the State adopts a percentage-reduction system, it must apply the same percentage to each of its welfare programs.
This claim was properly rejected by the court below. It is clear from the statutory framework that, although the four categories of public assistance found in the Social Security Act have certain common elements, the States were intended by Congress to keep their AFDC plans separate from plans under the other titles of the Act. A State is free to participate in one, several, or all of the categorical assistance programs, as it chooses. It is true that each of the programs is intended to assist the needy, but it does not follow that there is only one constitutionally permissible way for the State to approach this important goal.
This Court emphasized only recently, in Dandridge v. Williams, 397 U. S. 471, 485 (1970), that in “the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.” A legislature may address a problem “one step at a time,” or even “select one phase of one field and apply a remedy there, neglecting the others.” Williamson v. Lee Optical Co., 348 U. S. 483, 489 (1955). So long as its judgments are rational, and not invidious, the legislature’s efforts to tackle the problems of the poor and the needy are not subject to a constitutional strait jacket. The very complexity of the problems suggests that there will be more than one constitutionally permissible method of solving them.
The standard of judicial review is not altered because of appellants’ unproved allegations of racial discrimination. The three-judge court found that the “payment by Texas of a lesser percentage of unmet needs to the recipients of the AFDC than to the recipients of other welfare programs is not the result of racial or ethnic prejudice and is not violative of the federal Civil Rights Act or the Equal Protection Clause of the 14th Amendment.” The District Court obviously gave careful consideration to this issue, and we are cited by its opinion to a number of subsidiary facts to support its principal finding quoted above. There has never been a reduction in the amount of money appropriated by the legislature to the AFDC program, and between 1943 and the date of the opinion below there had been five increases in the amount of money appropriated by the legislature for the program, two of them having occurred since 1959. The overall percentage increase in appropriation for the programs between 1943 and the time of the District Court’s hearing in this case was 410% for AFDC, as opposed to 211% for OAA and 200% for AB. The court further concluded:
“The depositions of Welfare officials conclusively establish that the defendants did not know the racial make-up of the various welfare assistance categories prior to or at the time when the orders here under attack were issued.”
Appellants in their brief in effect abandon any effort to show that these findings of fact were clearly erroneous, and we hold they were not.
Appellants are thus left with their naked statistical argument: that there is a larger percentage of Negroes and Mexican-Americans in AFDC than in the other programs, and that the AFDC is funded at 75% whereas the other programs are funded at 95% and 100% of recognized need. As the statistics cited in the footnote demonstrate, the number of minority members in all categories is substantial. The basic outlines of eligibility for the various categorical grants are established by Congress, not by the States; given the heterogeneity of the Nation’s population, it would be only an infrequent coincidence that the racial composition of each grant class was identical to that of the others. The acceptance of appellants’ constitutional theory would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be. Few legislative efforts to deal with the difficult problems posed by current welfare programs could survive such scrutiny, and we do not find it required by the Fourteenth Amendment.
Applying the traditional standard of review under that amendment, we cannot say that Texas’ decision to provide somewhat lower welfare benefits for AFDC recipients is invidious or irrational. Since budgetary constraints do not allow the payment of the full standard of need for all welfare recipients, the State may have concluded that the aged and infirm are the least able of the categorical grant recipients to bear the hardships of an inadequate standard of living. While different policy judgments are of course possible, it is not irrational for the State to believe that the young are more adaptable than the sick and elderly, especially because the latter have less hope of improving their situation in the years remaining to them. Whether or not one agrees with this state determination, there is nothing in the Constitution that forbids it.
Similarly, we cannot accept the argument in Mr. Justice Marshall’s dissent that the Social Security Act itself requires equal percentages for each categorical assistance program. The dissent concedes that a State might simply refuse to participate in the AFDC program, while continuing to receive federal money for the other categorical programs. See post, at 577. Nevertheless, it is argued that Congress intended to prohibit any middle ground — once the State does participate in a program it must do so on the same basis as it participates in every other program. Such an all-or-nothing policy judgment may well be defensible, and the dissenters may be correct that nothing in the statute expressly rejects it. But neither does anything in the statute approve or require it.
In conclusion, we re-emphasize what the Court said in Dandridge v. Williams, 397 U. S., at 487:
“We do not decide today that the [state law] is wise, that it best fulfills the relevant social and economic objectives that [the State] might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court.... [T]he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.”
Affirmed.
Mr. Justice Stewart joins in Part III of the Court’s opinion.
Mr. Justice Douglas, with whom Mr. Justice Brennan concurs, dissenting.
I would read the Act more generously than does the Court'. It is stipulated that 87% of those receiving AFDC aid are blacks or Chicanos. I would therefore read the Act -against the background of rank discrimination against the blacks and the Chicanos and in light of the fact that Chicanos in Texas fare even more poorly than the blacks. See L. Grebler, J. Moore, & R. Guzman, The Mexican-American People, pts. 2 and 3 (1970) ; J. Burma, Mexican-Americans in the United States 143-199 (1970); Schwartz, State Discrimination Against Mexican Aliens, 38 Geo. Wash. L. Rev. 1091 (1970); U. S. Commission on Civil Rights, The Mexican American (1968); U. S. Commission on Civil Rights, Mexican Americans and the Administration of Justice in the Southwest (1970). In Rosado v. Wyman, 397 U. S. 397, 413, we said that in administering such a program a State “may not obscure the actual standard of need.” Texas does precisely that by manipulating a mathematical formula.
In Rosado, we described how some States establish upper limits or máximums of aid, while others, like Texas, “curtail the payments of benefits by a system of 'ratable reductions’ whereby all recipients will receive a fixed percentage of the standard of need.” Id., at 409. Then in footnote 13 we described what that meant: “A 'ratable reduction’ represents a fixed percentage of the standard of need that will be paid to all recipients. In the event that there is some income that is first deducted, the ratable reduction is applied to the amount by which the individual or family income falls short of need.” Id., at 409 n. 13 (emphasis added).
If Texas first deducted outside income and then made its ratable reduction, the welfare recipient would receive a somewhat more generous payment, as the opinion of the Court illustrates in footnote 6 of its opinion. Not only does the Texas system avoid this generous approach, but it also impermissibly constricts the standard of need in conflict with Rosado, Dandridge v. Williams, 397 U. S. 471, and Townsend v. Swank, 404 U. S. 282. Under Texas’ method of computation, a family — otherwise eligible for AFDC benefits but with nonexempt income greater than the level of benefits and less than the standard of need — is denied both AFDC cash benefits and other noncash benefits such as medicaid. It seems inconceivable that Congress could have intended that noncash benefits be denied those with incomes less than the standard of need solely because that income was earned rather than from categorical assistance. Yet this is precisely the result sanctioned by the Court today because eligibility for these programs is tied to the receipt of cash benefits.
One of the stated purposes of the AFDC program is “to help such parents or relatives [of needy dependent children] to attain or retain capability for the maximum self-support and personal independence.” 42 U. S. C. § 601 (emphasis added). The Senate Finance Committee has stated, “A key element in any program for work and training for assistance recipients is an incentive for people to take employment.” S. Rep. No. 744, 90th Cong., 1st Sess., 157 (1967) (emphasis added). The majority acknowledges that “[t]he history and purpose of the Social Security Act... indicate Congress' desire to help those on welfare become self-sustaining.” Ante, at 544. But it nonetheless ignores the explicit congressional policy in favor of work incentives and upholds a system which provides penalties and disincentives for those who seek employment.
The California Supreme Court in Villa v. Hall, 6 Cal. 3d 227, 490 P. 2d 1148, struck down the system this Court approves today, where California used a statutory maximum of payments rather than a ratable reduction. The California Supreme Court quite properly said that what the State was attempting was inconsistent with Rosado. Moreover, it had an additional reason:
“The conclusion that the Social Security Act requires outside income to be subtracted from standards of need rather than from statutory máximums or ratable reductions is also founded on a strong public policy of encouraging welfare recipients to become constantly more self-supporting. Yet deducting income from statutory máximums makes gainful employment significantly less attractive to the recipient. This follows because all nonexempt income will be offset directly against the amount of the grant and not against the standard of need to determine actual need; for every nonexempt dollar earned, the amount of aid will therefore be decreased one dollar. Since the grant is always less than the standard of need, in many instances the system adopted by the Welfare Reform Act will result in an individual’s need not being met even after adding both exempt and nonexempt income to the AFDC payment. Such recipients will be forced to exist below the bare minimum necessary for adequate care, even though they have commenced, by obtaining employment, to break free from the debilitating ‘welfare syndrome.’ The practice thus conflicts with the stated federal policy to provide incentives to obtain and maintain an employment status.” Id., at 235-236, 490 P. 2d, at 1153-1154.
Moreover, Townsend v. Swank, 404 U. S. 282, calls for a reversal in the present case. It is conceded that plaintiff Maria T. Davilla and 2,470 other families are denied aid in Texas by reason of its new formula, see 304 F. Supp. 1332, 1343, despite the fact that their income is below the standard of need and that of those receiving AFDC aid only 75% of their needs is met.
Under §
Question: What is the court whose decision the Supreme Court reviewed?
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210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_respond1_3_3
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J
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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 "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
STERLING ALUMINUM COMPANY, a Division of Federal-Mogul, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 18829.
United States Court of Appeals Eighth Circuit.
Feb. 29, 1968.
James S. Newberry, of O’Herin & Newberry, Malden, Mo., for petitioner.
Paul J. Spielberg, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and John E. Nevins, Atty., N.L.R.B., Washington, D. C., on the brief.
Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.
HEANEY, Circuit Judge.
The Sterling Aluminum Company, a division of Federal-Mogul, petitions this Court to review an order of the National Labor Relations Board. Reported at 163 NLRB 40, March 9, 1967, 64 LRRM 1354. The Board requests that its order be enforced. This Court has jurisdiction under Section 10(e) and (f) of the National Labor Relations Act. 29 U.S.C. § 160(e), (f) (1964 ed.).
The Company, a manufacturer of automobile pistons, transferred its operations from St. Charles to Malden, Missouri, and began production in March, 1963. The International Molders and Allied Workers Union of North'- America, AFL-CIO, who represented the employees at St. Charles, followed the Company to Malden, and instituted an organizational campaign July 12, 1964. It made rapid progress and filed a representation petition with the Board on July 27th (Case No. 14-RC-4904). The Company conducted a vigorous campaign against Union representation, which resulted in the Union losing the N.L.R.B. supervised election on September 17th. The Union filed objections to the election and unfair labor practice charges.
The General Counsel, after an investigation of the charges, issued a complaint alleging that the employer had violated Section 8(a) (1) and (3) of the Act. 29 U.S.C. § 158(a) (1), (3) (1964 ed.).
The Trial Examiner concluded that the Company violated Section 8(a) (1) of the Act by threatening reprisals, promising and granting benefits, coercively interrogating employees, subjecting Union supporters to ridicule, engaging in and creating the impression of surveillance, inducing and encouraging employees to report on the Union activities of fellow employees, threatening to bargain in bad faith, creating grievance committees to discourage Union membership, and other related acts of unlawful interference. He also concluded that the Company discharged eleven Union adherents prior to the election to rid itself of the most active unionists and to thin the ranks of Union supporters and, thereafter, in anticipation of another election, discharged seventeen additional employees and refused to rehire one more. He held the twenty-eight discharges and the one refusal to rehire violated Section 8(a) (3) and (1) of the Act. The Board, with minor modifications not material here, adopted the recommendations of the Trial Examiner.
The Company does not contest the Board’s findings and conclusions that the Company violated Section 8(a) (1) of the Act. It asks, however, that its findings and conclusions respecting the discharges and the refusal to rehire be reversed. It contends that the General Counsel failed to sustain its burden of proving that the twenty-nine employees were discharged because of their Union activities, or that it was motivated to discharge them by a desire to interfere with their rights under the Act. It urges that there was a lack of substantial evidence to establish that: it had knowledge of the fact that the discharged employees were members of the Union; it had no legitimate business reasons for discharging the employees; the reasons advanced by it for the discharges were mere pretenses.
The standards to be applied in reviewing decisions of the N.L.R.B. are well recognized. E.g., Universal Camera Corp. v. National L. R. Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N. L. R. B. v. Superior Sales, Inc., 366 F.2d 229 (8th Cir. 1966); N. L. R. B. v. Coachman’s Inn, 357 F.2d 134 (8th Cir. 1966); N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., 311 F.2d 534 (8th Cir. 1963). We apply them here.
In determining whether there is substantial evidence on the whole record to support the findings of the Board that the Company discriminated against twenty-nine employees by discharge or refusal to rehire, it will be convenient to divide them into five groups. Group 1(A) consists of five employees laid off on July 10, 1964, and discharged on August 19, and 1(B) consists of five employees laid off on July 31, 1964, and also discharged on August 19. Group 2 consists of four employees discharged on December 4, 1964, and a fifth employee whose layoff resulted from the discharge of the four. Group 3 consists of four employees laid off on February 3, 1965, and subsequently discharged. Group 4 consists of four employees discharged in February of 1965. Group 5 consists of the remaining employees.
GROUP 1
On July 10, 1964, two days before the Union initiated its organizational campaign, the Company laid off thirty-six employees for economic reasons. On July 31st, it laid off an additional ten employees. A few days later, the Company began the recall of the laid off employees and, within a short time, had recalled all but fourteen of the forty-six. The fourteen were notified by the Company, on August 19, 1964, that their work was unsatisfactory, and that their temporary layoff should be considered permanent. Ten of the fourteen had signed Union cards. It is this ten with which we are concerned.
We turn first to a consideration of Bob Batchelor, Acy Lee Green, Teddy Guffey, Larry Walton and David Midkiff. They were among the thirty-six employees laid off on July 10th, and discharged on August 19th. We have carefully examined the record relating to them and find that there is substantial evidence to support the findings of the Board that the discharge of Batchelor, Green and Midkiff was discriminatory and in violation of Section 8(a) (3). The essential “ingredients” of such findings are a knowledge on the part of the employer that the employee is engaged in Union activity and the discharge of the employee because of this activity. N. L. R. B. v. Melrose Processing Co., 351 F.2d 693, 697 (8th Cir. 1965).
There was direct testimony to support a finding that the Company knew that Batchelor was a Union adherent and sufficient circumstantial evidence to justify an inference that the Company had similar knowledge as to Green and Midkiff. The Company carried on a widespread systematic interrogation to determine where each employee stood on the Union question. Its supervisors admitted that they had a good idea as to who the Union adherents were (although, in a few instances, their ideas were wrong). Malden is a small community and many of its leaders were involved in the campaign. N. L. R. B. v. Melrose Processing Co., supra; A. P. Green Fire Brick Company v. N. L. R. B., 326 F.2d 910 (8th Cir. 1964). The Union made no secret of its organizational campaign. It solicited authorization cards in and around the plant building and held its meetings in the meeting room of the Catholic Church, where persons attending could be readily observed coming and going. Employees favorable to the Company indicated where their sympathies lay.
We believe that the record, as a whole, supports the Board’s conclusion that Batchelor, Green and Midkiff were discharged for Union activity rather than for a cause or causes unrelated to such activity. While there is conflict in the testimony, it is not for us to displace the Board’s choice between two fairly conflicting views of the evidence, even though we might have made a different choice of inferences had the matter been before us. N. L. R. B. v. Coachman’s Inn, supra; N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., supra.
Batchelor was allegedly discharged for absenteeism and poor work but had not been reprimanded for either prior to his layoff.
Green was allegedly discharged • for “running bad pistons” but had been transferred out of the department in which the pistons were made prior to this layoff. His services in the new department were satisfactory.
Midkiff was allegedly discharged for improper inspection of pistons but had not been warned that his work was unsatisfactory despite a custom to give each employee a written notice to this effect.
We do not believe, however, that the record supports the Board’s findings that the discharges of Guffey and Walton were discriminatory. The Board’s determination that the Company knew they were Union members and discharged them for that reason was based entirely on circumstantial evidence. While this is permissible and while the Board is free to draw reasonable inferences from the evidence, N. L. R. B. v. Melrose Processing Co., supra; Kitty Clover, Inc. v. National Labor Relations Board, 208 F.2d 212 (8th Cir. 1953), such inferences must be adequately supported in the record. Otherwise, as Judge Sanborn indicated in Cupples Co. Manufacturers v. National Labor R. Board, 106 F.2d 100, 117 (8th Cir. 1939), the findings of the Board may represent nothing more than accurate guesses.
It is clear that the Company was hostile to the Union, and that it was seriously interfering with the rights of employees at or about the time of the discharges. It was also reasonable for the Board to infer that the Company knew that Guffey and Walton were Union members. We recognize that each of these facts give some support to the inference that the discharges were discriminatory, N. L. R. B. v. Superior Sales, Inc., supra; N. L. R. B. v. Melrose Processing Co., supra; N. L. R. B. v. Council Manufacturing Corporation, 334 F.2d 161 (8th Cir. 1964); N. L. R. B. v. Arkansas-Louisiana Gas Co., 333 F.2d 790 (8th Cir. 1964), but they do not, in our view, support it sufficiently: (1) The July 10th layoff was admittedly nondiscriminatory in nature. (2) The Company had a good reason for discharging Guffey and Walton. Compare, N. L. R. B. v. Byrds Manufacturing Corporation, 324 F.2d 329 (8th Cir. 1963). (3) Three other employees, none of whom were Union adherents, were also discharged for absenteeism on the same date. Cf., National Labor Relations Board v. Fisher Governor Co., 163 F.2d 913 (8th Cir. 1947). (4) There was no evidence that any of the six employees discharged for absenteeism were subsequently replaced. (5) While the Company may have had reasonable cause for believing that Guffey and Walton were Union adherents, there was no indication in the record that they were among the leaders or were active in the organizational drive.
We turn now to a consideration of the five employees laid off on July 31st and discharged on August 19, 1964, namely: Glendle Elsworth, John P. Battles, Earl Thurston, Ether Lee Coats and Rodney Proffer.
We have carefully reviewed the record relating to them and find that there is substantial evidence to support the Board’s conclusion that their discharges were discriminatory. In our view, the Board’s statement with respect to the five is well taken.
“Not only had * * * [they] been passed over in the first, clearly nondiscriminatory, layoff, but they were thereafter laid off just four days after the petition for an election was filed, and only a very short time before Respondent actually began calling back employees from the first layoff, in which these five had not originally been included. If it is assumed, as Respondent apparently contends, that its least desirable employees were laid off first, some explanation would seem to be in order for recalling earlier laid off employees, while terminating those who had originally been retained. No reason appears. Finally, notwithstanding, the contention that the five employees laid off on July 31 were selected by the divisional superintendents, the evidence shows that certainly three, including two of the foremost Union adherents [Battles and Elsworth], were picked out by higher management.”
Not only was there direct testimony indicating that the Company was aware of the fact that Battles and Elsworth were leaders in the drive for Union recognition, but there is a lack of testimony to support the Company’s contention that they were discharged for cause. The incidents relied upon by the Company to establish that Battles had a poor work record occurred after he had been selected as one of the employees to be laid off, and were not demonstrated to have been of a substantial nature. While the Company advanced reasons for discharging Elsworth, the record indicates that he was, in fact, considered to be a good employee doing an essential job.
The Company knew that Proffer was a Union adherent, and had good reason to believe that Coats was, as he was a close friend and constant companion of Elsworth. The Board was, for the reasons previously stated, justified in concluding that the Company was also aware of Thurston’s Union membership.
The Company advanced reasons for the discharge of all three. It contended that Proffer had a record of excessive absenteeism, that Coats failed to “produce enough,” and that Thurston had provoked an argument with a supervisor and was not a valuable employee. While there is some merit to the Company’s position as to each employee, we cannot say that the Board did not reach a permissible conclusion with respect to them. Proffer was not given a final warning as to his absenteeism, and had been complimented by a supervisor as doing “a darn good jobCoats was never shown the disciplinary report indicating he was not meeting his production quota, and denied having been reprimanded for the alleged deficiency; and Thurston had been complimented on his work, and denied provoking an argument with his supervisor.
GROUP 2
Larry Golden, Harold Gough, Lloyd Evans and Gary Burrow were discharged on December 4, 1964, and Frankie Rice was laid off as a result of the discharges.
The Company testified that it discharged the four because they failed to meet a production standard of $1.75 per hour.
A review of the record indicates: that the four employees had not been advised of the $1.75 standard; that the home office of the Company, rather than local supervisors, determined those not meeting the standard; that the other nine employees discharged on December 4th were not members of the Union; that no employees earning less than $1.75 per hour were retained on the payroll; and that replacements were hired for the discharged employees.
The Trial Examiner, whose findings were adopted by the Board, discussed the evidence and concluded:
“The termination of the employees * * * shows a pattern of elimination of employees of fairly long service, with no warning, no previously stated dissatisfaction with the quantity or quality of their work, carried out with an attitude of obvious reluctance on the part of the immediate supervisors most concerned, or asserted mystification as to the reason for the termination of these employees. In the circumstances * * *, the inference [is] compelling that these terminations constitute only another facet in Respondent’s campaign to dilute, if not wipe out, the adherents of the Union among the employees.
“ * * * [I] t strains credibility that administrative officers, far removed from the production scene, would make quite serious decisions about production personnel, on a large scale, without consulting the production supervision directly affected, if in fact, ‘production’ was the basis for the decisions. being made. * * * ”
While the decision of the Company to weed out the “thirteen least efficient” employees without consultation with their immediate supervisor and without advising the employees that the $1.75 per hour standard existed was unfair to the employees and of questionable benefit to the Company, we do not feel that it is reasonable to infer that the Company discharged thirteen employees to eliminate four Union adherents. The record of the Company before and after December 4th indicated that it knew who the Union adherents were and that it had no hesitancy in finding a “reason” for eliminating them. If the Company had discharged four non-Union employees to provide a cover for the elimination of nine Union adherents, the inference made by the Board might well be permissible. But, in this situation, particularly where none of the four were active in the organizational effort and only two (Evans and Burrow) were identified as being known Union adherents by direct testimony, the inference in our view is not a reasonable one. Cf., National Labor Relations Bd. v. Shedd-Brown Mfg. Co., 213 F.2d 163 (7th Cir. 1954); National Labor Relations Board v. Dinion Coil Co., 201 F.2d 484 (2d Cir. 1952); National Labor Relations Board v. Sifers, 171 F.2d 63 (10th Cir. 1948).
The Board cites, Sheffer Corp. v. N. L. R. B., 380 F.2d 1007 (6th Cir. 1967); N. L. R. B. v. Tidelands Marine Service, Inc., 338 F.2d 44 (5th Cir. 1964); Wonder State Manufacturing Company v. N. L. R. B., 331 F.2d 737 (6th Cir. 1964); National Labor Relations Board v. Williams, 195 F.2d 669 (4th Cir.), cert. denied, 344 U.S. 834, 73 S.Ct. 42, 97 L.Ed. 649 (1952); National Labor Relations Board v. National Garment Co., 166 F.2d 233 (8th Cir.), cert. denied, 334 U.S. 845, 68 S.Ct. 1513, 92 L.Ed. 1768 (1948), to support its view that it was permissible for the Board to infer that non-Union employees were discharged to lend credence to the discharge of Union adherents. We do not believe that the cases cited are authority for drawing the inference here.
In Sheffer, the employer discontinued an entire night shift of twenty-seven employees when the Union showed strength on that shift, asserting that the shift was uneconomic. Subsequently, all but four were rehired, and these four, the subject of the proceeding, were known by the Company to be Union adherents. The Court directed the reinstatement of the four.
In Tidelands Marine Service, a crew of thirteen was laid off and not rehired, the asserted reason being that they had failed to advise the Company as to how they could be recalled. Three of the crew were subsequently put to work, but most never worked for the Company again. The crew included two of the most active Union organizers, and most of the crew had signed Union pledge cards. The Board stated, “The employer knew of the Union membership of most, if not all, of the crew. * * * He clearly did know some were Union men and he had reason to believe that others were as well.” Here again, there is no indication that the entire crew was fired to reach a few known Union adherents among the thirteen; but rather that the entire crew was fired because the employer felt that most, if not all, were active supporters of the Union.
In Wonder State, two employees worked together in the Company’s shipping department. One of them was the known leader in the Union movement. He held a meeting at his home and his fellow employee was among those attending. Two days later, both were discharged, the asserted reason being their continued carelessness. The Court directed the reinstatement of both.
In Williams, two employees — one of whom was an active supporter of the Union — were discharged, the asserted reason being lack of work. The Court directed the reinstatement of both.
And, in National Garment, all of the employees performing similar work in the plant were laid off allegedly for a bottleneck in production. The day before the layoff occurred, the employer made a speech to all employees in which he threatened to close the plant before dealing with the Union. The Board found that the real reason for the layoff was to implement the threat of the previous day.
Of the five cases cited to support the Board’s position, only two, Wonder State and Williams, involved a situation in which a non-Union employee was discharged to cover the discharge of a known Union adherent. And, in each case, the facts supporting the inference that the charges were discriminatory were, for obvious reasons, stronger than here.
GROUP 3
Gale Hodges, George Rose, Clarence Nettleton and Andrew Loaf man were laid off on February 3, 1965. They were told to return to work the following Monday, at which time other inspectors would be laid off, indicating that a work sharing program was intended. On Saturday, however, the four received notice that due to unforeseen circumstances, their layoff had been indefinitely extended. Two or three weeks later, Hodges, Nettleton and Loaf man were notified that their separation from employment was considered to be permanent as of February 4, 1965. On March 25th, Rose was notified that his work record had been evaluated, found to be unsatisfactory, and that he was, therefore, terminated. All four were members of and active in the Union. There was direct testimony that the Company knew that Hodges, Rose and Loaf man were Union adherents, and it can be reasonably inferred that the Company had similar knowledge as to Nettleton. All four employees were replaced.
The Company contended before the Board that: Hodges was discharged for excessive tardiness and low production; Rose was discharged for his “poor inspections;” Nettleton was discharged for poor inspections and inadequate production; and Loafman was discharged for a number of minor delinquencies. It did not renew its arguments in its brief or in oral argument.
We have reviewed the record carefully and find that there is substantial evidence to support the Board’s conclusion that the discharges were discriminatory. These conclusions were based on the Board’s findings, amply supported by the record, that the employees were satisfactory to excellent employees, that their original layoff was for economic reasons, that they were never advised as to the reason for their discharge, and that the reasons advanced by the Company at the hearing were mere pretences. See, N. L. R. B. v. Melrose Processing Co., supra; N. L. R. B. v. Plant City Steel Corporation, 331 F.2d 511 (5th Cir. 1964); N. L. R. B. v. Griggs Equipment, Inc., 307 F.2d 275 (5th Cir. 1962); N. L. R. B. v. Dell, 283 F.2d 733 (5th Cir. 1960) (subsequent proceedings reported at 309 F.2d 867 [5th Cir. 1962]).
GROUP 4
D. W. McMillian, Billy Joe Walker, William Wages and Herman Wayne McElrath were each replaced by an employee transferred to Malden from a Company plant in another community. McMillian, Wages and McElrath were superior or satisfactory employees. Although there is a conflict in the testimony, the Board’s finding that Walker was satisfactory is supported by substantial evidence. Walker, -Wages and Mc-Elrath were senior employees in their department. McMillian was a junior employee in his department, but his replacement left the job a few weeks after filling it and McMillian was not offered his old position.
The Company knew that McMillian, Walker and Wages were Union adherents. Its knowledge as to McElrath’s adherency could reasonably be inferred from the circumstances.
There was no evidence of a Company practice relating to the transfer of employees from one plant to another. The Company had, in fact, refused employment to some of its former St. Charles employees and committed itself to employing its non-supervisory employees from the Malden area in return for which the community furnished certain facilities. Under such circumstances, little, if any, weight can be given to the Company’s argument that it was merely exercising its discretion in transferring the employees into the Malden plant.
In our view, the findings of the Board that:
“ * * * [I]t is obvious that every effort was made to exclude these men from further employment, even against the efforts of their immediate supervisors to retain them or have them transferred to other jobs. In the cases of Walker, Wages and McElrath, these men were let go while junior employees were retained. In McMillian’s case, the determination not to further employ him is shown by Respondent’s failure to even offer him his old job when it became vacant soon after his layoff. Each of these men were adherents of the Union. Wages and Mc-Millian being notably active in its behalf. * * * ”
are supported by substantial evidence, as is the Board’s conclusion, that the employees were discriminatorily discharged.
GROUP 5
The Board’s conclusion that Jimmy Rose, John Moore and John Barney were not discharged for cause is supported by substantial evidence. They were active in the Union organizational campaign, and were members of the Union. There is direct testimony indicating that the Company was aware of their Union adherency and activity. While the Company advanced a reason for the discharge of each of the employees, the Board found that they were all considered by the Company to be good employees, and that they began to get into difficulties with the employer only after they became active in the Union.
The Company’s asserted reason for discharging Jimmy Rose was that he had failed to notify the Company that he was unable to work because of an injury to his hand within the three-day time limit established by the Company for such notice. The undisputed evidence indicated that Rose’s wife had, in fact, called the Company on the third day and informed it of her husband’s injury and inability to return to work.
John Moore had, in fact, been considered one of the Company’s top employees and had been permitted to transfer to improve his position in the Company. After the organizing campaign began, he was involuntarily transferred to another department. When he protested, he was told by a supervisor that he had been picked as one of the Union instigators. A supervisor admitted that the Company was seeking to build a record against Moore. While it is clear that he did not succeed in the department to which he had been involuntarily transferred, he was not reconsidered for re-transfer to a department in which he had done good work.
The Company asserted that it discharged John Barney for falsifying his production records on one occasion. On the day he was discharged, he was called into the Superintendent’s office and told that there was no way he could have produced the number of pistons reported on the previous day. He attempted to explain how he was able to produce the number claimed, but was discharged without being given an opportunity to do so. In the light of the refusal of the Company to permit the employee to give his explanation and in view of the Company’s inability to reproduce at the hearing the computation that it claims required Barney’s discharge, the Board’s conclusion that Barney was discriminatorily discharged is sustained. See, N. L. R. B. v. Baker Hotel of Dallas, Inc., 311 F.2d 528 (5th Cir. 1963); N. L. R. B. v. Avondale Mills, 242 F.2d 669 (5th Cir. 1957), aff’d, 357 U.S. 357, 78 S.Ct. 1268, 2 L.Ed.2d 1383 (1958).
Joseph A. Butler, a handicapped employee, was laid off on October 25, 1965. He was informed that the layoff resulted from a lack of work for him to perform. The Company, however, promptly replaced Butler with another employee. The Company admitted at the hearing that he had, in fact, been discharged because he was unable to do his job without assistance from other employees.
The record indicates that the Company had direct knowledge of the fact that Butler was a Union adherent; that his work had been considered satisfactory until the time he became a member of the Union; and that the Company had a policy of hiring and retaining handicapped workers.
The Company’s policy of hiring handicapped workers is certainly a commendable one, and one that ought not to be discouraged by requiring it to maintain a handicapped worker in its employment when it has been adequately demonstrated that he cannot perform the duties for which he was employed. On the other hand, we cannot permit an employee’s handicapped condition to serve as a cover for a discriminatory discharge. We believe that the Board’s finding that Butler’s discharge was discriminatory is substantially supported by the record. He was hired on February 4, 1964, and worked without complaint until October 25th. While he admittedly had some difficulty in performing his work, there is no indication that it was substantial or unexpected, or that it was greater after July 27th, the date on which he signed a Union card, than it had been before that date. The fact that a false reason was given Butler at the time of his discharge is additional evidence of discrimination. N. L. R. B. v. Kalof Pulp & Paper Corporation, 290 F.2d 447 (9th Cir. 1961); National Labor Relations Bd. v. S. S. Coachmen and Sons, 203 F.2d 109 (5th Cir. 1953); National Labor Relations Board v. Fisher Governor Co., supra.
Kenneth Harris was hired in March of 1963, in the warehouse, and remained there for nearly two years. At that time, he was transferred to the mainteance department. Thereafter, the Plant Manager asked him to work in the “A-Turn” department for a few weeks to see how he liked it, promising to shift him to another job Harris had asked for when an opening arose. Harris worked on the A-Turn machines for about one and one-half weeks. On February 26, 1965, he was asked, just before quitting time, whether he would work the following day, a Saturday. He stated that he would. Fifteen minutes later, the supervisor returned and told him that he had been discharged on instructions from “higher up.” Harris later received notification that he was terminated because his production had not met the Company’s standards. While there is no direct evidence in the record that Harris was known by the Company to be a Union adherent, the inference that he was is strong as he had been questioned about it by an employee who had been asked to obtain this type of information and report it to the Warehouse Superintendent. The Company contended at the Board hearing that Harris was fired because he failed to meet a standard of 2,000 pieces a day on the A-Tum machines. The only testimony supporting this contention was that of the Plant Manager, who had testified in a pre-hearing deposition that he did not know Harris.
We believe that the facts adequately support the Board’s finding that Harris was discharged for Union activities. His discharge is clearly distinguishable from those of Golden, Gough, Evans and Burrow. Indeed, it emphasizes the fact that the Company could and would discharge Union adherents with pinpoint accuracy and without bothering to cover their discharge by discharging non-Union employees simultaneously.
Terry H. Butler was hired in October of 1962. He joined the Union and served as one of two observers for the Union at the Board election. He quit his job in November of 1964. In January of 1965, he approached the Plant Manager and asked about coming back to work. The Plant Manager advised Butler that he would check into the matter. He later advised Butler that the Personnel Manager “didn’t want to hire [him] because [he], worked pretty hard for the Union and also that perhaps the Union could come up with an election again and [he] would still be for the Union.” The Company does not seriously challenge these findings, but contends that Butler was required to see and be rejected by the Personnel Manager before a violation can be found. We agree with the Board that this is not the law. An employee need not follow the letter of an employer’s hiring procedure where the circumstances make it clear that a rebuff would result. N. L. R. B. v. Valley Die Cast Corporation, 303 F.2d 64 (6th Cir. 1962); Piasecki Aircraft Corporation v. N. L. R. B., 280 F.2d 575 (3rd Cir. 1960), cert. denied, 364 U.S. 933, 81 S.Ct. 380, 5 L.Ed.2d 365 (1961); N. L. R. B. v. Stewart, 207 F.2d 8 (5th Cir. 1953).
SUMMARY
There is substantial evidence to support the Board’s decision that Bob Batchelor, Acy Lee Green, David Midkiff, Glendle Elsworth, John P. Battles, Earl Thurston, Ether Lee Coats, Rodney Proffer, Gale Hodges, George Rose, Clarence Nettleton, Andrew Loaf man, D. W. McMillian, Billy Joe Walker, William Wages, Herman Wayne McElrath, Jimmy Rose, John Moore, John Barney, Joseph A. Butler, and Kenneth Harris were discharged in violation of the Act; and to support a similar decision with respect to the Company’s refusal to rehire Terry H. Butler.
There is not substantial evidence, however, to support its decision that Teddy Guffey, Larry Walton, Larry Golden, Harold Gough, Lloyd Evans and Gary Burrow were discharged, or Frankie Rice laid off, in violation of the Act.
This matter is remanded to the National Labor Relations Board for action consistent with this opinion.
. Two earlier matters involving the labor relations of this Company have been decided by this Court. Woody v. Sterling Aluminum Products, Inc., 365 F.2d 448 (8th Cir. 1966), cert. denied, 386 U.S. 957, 87 S.Ct. 1026, 18 L.Ed.2d 105 (1967) (rehearing denied); Brown v. Sterling Aluminum Products Corporation, 365 F.2d 651 (8th Cir. 1966), cert. denied, 386 U.S. 957, 87 S.Ct. 1023, 18 L.Ed.2d 105 (1967) (rehearing denied).
. The Company was found not to have violated the Act by terminating six other employees. Complaints as to the discriminatory discharges of two other employees were withdrawn.
. Guffey was absent without excuse eight times in three months; three times in April, once in May and four times in June. He was given a final warning on June 26th, that further absences would lead to his discharge. Notwithstanding this fact, he was absent without excuse on July 10th, the date on which the layoff occurred.
Walton also had a substantial record of absenteeism. He was first employed in February, 1964. From then until July 26th, he was absent for approximately twenty-six Jays, or nearly twenty per cent of the time. While the record indicates that these absences may have been related to difficulty with his legs, caused by having to stand on the concrete floor while at work, it is clear that they affected his value as an employee.
. Rice was recalled to work in five weeks. It is conceded that he is entitled to receive back pay for the period of his layoff if, in fact, the four employees were discharged in violation of the Act, and that he is not if we reach a contrary result.
. There is a conflict in the testimony as to whether the replacements met the production standard of $1.75 per hour. The Trial Examiner, whose report was adopted by the Board, stated:
“Furthermore, it is clear that the
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
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songer_state
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19
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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".
Claudie R. LOVLESS, Appellant, v. EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Limited, Appellee.
No. 13893.
United States Court of Appeals, Fifth Circuit.
Jan. 28, 1955.
Raymond H. Kierr, New Orleans, La., for appellant.
René H. Himel, Jr., Malcolm W. Monroe, and Deutsch, Kerrigan & Stiles, New Orleans, La., for appellee.
Before HUTCHESON, Chief Judge, BORAH, Circuit Judge, and DAWKINS, District Judge.
PER CURIAM.
On October 19, 1950, the Tug “Lake-wyn” was operated by Jahncke Service, Inc. for delivering clam shells in the New Basin Canal at New Orleans. Claudie R. Lovless was employed by the company as deckhand on its towboat. About dusk that day he was injured when working aboard the barges which were loaded with shells and were being towed by the tug.
Lovless brought this action jointly against the vessel’s owner and its liability underwriter. His damage suit is based upon the Jones Act, 46 U.S.C.A. § 688, and upon the Maritime Law. He claims also maintenance and cure in a second cause of action, under the general Maritime Law. There is diversity of citizenship between all parties. Plaintiff relies on Section 655 of the Louisiana Insurance Code, Title 22, LSA-R.S., to authorize his direct suit against the insurance company.
The insurance policy sued upon is a “standard workmen’s compensation and employers’ liability policy,” in the amount of $15,000.00 to $25,000.00, issued at New Orleans, Louisiana by the Employers’ Liability Assurance Corp., Ltd. to Jahncke Service, Inc. with respect to personal injuries sustained by its employees. The policy contains a maritime endorsement making the damage coverage for employees’ injuries applicable to maritime employment. The insurance company is required to defend the insured and to pay all court costs and expenses. The policy contains the usual provision which precludes payment to anyone until the insured shall have been held liable to pay damages; and it further provides that a state statute shall control over any provision in the insurance policy which is inconsistent with the statute.
The Employers’ Liability Assurance Corporation, Ltd. moved in the trial court for dismissal and for summary judgment as to it, on the grounds that: (1) jurisdiction is lacking because the Jones Act creates no direct action against the underwriter of a seaman’s employer; (2) the Direct Action provision, § 655, of the Louisiana Insurance Code, cannot constitutionally apply to marine insurance because it would infringe upon the exclusive Federal jurisdiction over maritime matters; and (3) the insurance contract excludes liability for maintenance and cure.
The District Court granted the motion for summary judgment on October 3, 1951, and dismissed the action as to the Employers’ Liability Assurance Corporation, Ltd., and plaintiff brings this appeal.
Here, urging upon us that, except that, in the Cushing case, there was a limitation of liability proceeding and there is none here, the two cases are in substance the same, appellant insists that the law as decided in that case requires the reversal of the judgment in this one.
We agree that this is so. The judgment is accordingly reversed and the cause is remanded for further and not inconsistent proceedings.
. This policy, No. WC-750185, Clause 1 (b), stipulates “to indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada.”
. This was before the decision of this court, on July 31, 1952, in the case of Cushing v. Maryland Casualty Co., 5 Cir., 198 F.2d 536, reversing the judgment and decision of the district court reported in Cushing v. Texas & P. Ry. Co., D.C., 99 F.Supp. 681.
. Cushing v. Maryland Casualty Co., 5 Cir., 198 F.2d 536; Maryland Casualty Co. v. Cushing, 347 U.S. 409, 74 S.Ct. 608, 98 L.Ed. 306.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_casetyp2_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - commercial disputes - insurance disputes. 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".
ALEXANDER v. STANDARD ACC. INS. CO., DETROIT, MICH.
No. 2306.
Circuit Court of Appeals, Tenth Circuit.
Oct. 10, 1941.
Luther Bohanon, of Oklahoma City, Okl. (Bohanon & Adams and Bert B. Barefoot, Jr., all of Oklahoma City, Okl., on the brief), for appellant.
R. D. Hudson, of Tulsa, Okl. (Ned Looney and Clyde J. Watts, both of Oklahoma City, Old., on the brief), for appel-lee.
Before BRATTON, HUXMAN, and WILLIAMS, Circuit Judges.
HUXMAN, Circuit Judge.
Standard Accident Insurance Company executed a public liability policy of insurance with E. W. Jones, Inc., agreeing to indemnify it for damage arising out of any accident in the operation of its business of drilling, developing and producing oil and gas wells. Hugh Alexander suffered an injury December 6, 1937, while working for the Company. June 5, 1939, he filed suit for damages against the Company in the state courts of Oklahoma. The summons and a copy of the petition were delivered to Standard by the Company, with the request that it defend the suit. Standard refused to defend on the ground that there was no liability because the Company had failed to serve it with notice of the accident as required by the policy. Appellant obtained a judgment against the Company for $20,000. Execution issued thereon and was returned with the notation: “No property found.” Garnishment proceedings were thereupon instituted against Standard in the state courts of Oklahoma, as provided by state law. These proceedings were removed to the United States District Court for the Eastern District of Oklahoma where a trial was had to a jury. At the close of Plaintiff’s case, the court directed a verdict for Standard.
The policy provides that: “Upon the occurrence of an accident irrespective of whether or not a claim for damages appears reasonably probable, the Assured shall give Immediate Written Notice thereof, with the fullest information obtainable, to the Company at its Home Office, Detroit, Michigan, or its duly authorized Agent. * * * Notice given by or on behalf of the Assured to any authorized Agent of the Company within the State where the accident occurs, with particulars sufficient to identify the Assured, shall be deemed to be notice to the Company.”
To establish a cause of action, it was necessary for plaintiff to prove that this provision of the policy had been complied with. No direct evidence was adduced showing that written notice was given to Standard. Plaintiff’s position seems to be that the evidence established that some kind of notice, “either oral, direct or indirect”, was given, and that, if oral, Standard waived the provision of the policy requiring that written notice be given. The testimony upon which plaintiff relies to establish notice is as follows:
Charles Christianson testified that he was employed by the R. H. Siegfried Company which represented Standard; that the R. H. Siegfried Company was a general agent of Standard; and that he had charge of the claim department dealing with the investigation and payment of claims.
At the time appellant was injured, he was living at the home of his father, Harry Alexander. After the injury he spent approximately ten days or two weeks in a hospital, when he was taken back to his father’s home. Harry Alexander, the father of appellant, testified that a day or two after appellant returned home a man came to his house and talked to him; he said he was an insurance adjustor; he did not remember his name. The next time he saw him was at the trial of appellant against the Company in the state court; he identified Christianson in the courtroom as the man who came to his house that day; Christianson asked how the accident happened and asked who was present at the time appellant was injured, and he told him.
Truman Ring testified that he was one of the roustabouts working on the lease at the time appellant received his injury; that he talked to a man after the accident occurred who said he was a representative of the insurance company which carried the insurance for the company; that his name was “Christian or Christensen or Christmas, or something like that.”
George Dodson testified that he was working for the company on the day the accident occurred; that after the accident and after appellant had been returned home from the hospital, he was approached by an adjustor; that he did not remember his name; that the adjustor asked him about the accident in which appellant was injured; that it was about eight or nine days after the accident occurred that he had this conversation with the adjustor.
Appellant testified that after he got home he saw an insurance adjustor for an insurance company, who asked about the accident, and he told him.
Charles Pittinger testified that he was employed by E. W. Jones, Inc., on the day appellant was injured; that he reported the occurrence to H. B. Jones, his superior officer; that he also talked to E. W. Jones, president of the company, and told him about the accident.
Appellant offers no positive, direct evidence that either written or oral notice was given by the Company to either the general agent or to Standard. Can it be said that the evidence that an adjustor who was an employee of the General Agent appeared and made inquiry concerning the accident is such that from it a jury might reasonably conclude, according to reason and the common experience of men, that the company did give notice? If it can, the court was in error in directing a verdict for Standard. If not, the ruling of the court was right, because the competency of circumstantial evidence offered to establish an ultimate fact, that is, whether the circumstances may reasonably tend to prove the ultimate fact, is a question of law in the first instance, to be decided by the court. United States Fidelity & Guaranty Co. v. Des Moines Natl. Bank, 8 Cir., 145 F. 273, 279; Payne v. Blevins, 4 Cir., 280 F. 310; C. M. & St. Paul Ry. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041. If the inference may be drawn from these circumstances that the Company gave notice, then the question arises: To whom was it given? — to the agent or to Standard? If the notice was to the agent, was it oral or written? The policy provided for written notice and the agent had no authority to waive the provisions of the policy requiring written notice. All of these questions must be answered before it can be said that the Company gave notice to Standard. A proper answer to them cantlot be reasonably inferred from the sole circumstance that an adjustor for the agent appeared and made some inquiry concerning the accident. The court rightly held that appellant failed to prove notice.
The mere choice of probabilities does not constitute evidence and will not be submitted to the jury. Nor does the placing of inference on inference or presumption on presumption constitute a sufficient basis for the determination of facts. United States v. Ross, 92 U.S. 281, 283, 23 L.Ed. 707; Pennsylvania R. R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Parker v. Gulf Refining Co., 6 Cir., 80 F.2d 795; The Cabo Hatteras, D.C., 5 F.Supp. 725.
Appellant, however, contends that by making an investigation of the accident, Standard waived the requirement for notice and is now estopped from asserting it as a defense. For the purpose of this discussion it may be assumed that the investigation that was made was at the instigation of Standard. Strictly speaking, the inability of a party to an action to assert as a defense a right given by a contract does not spring from a waiver thereof, but from estoppel resulting from a waiver. Mere failure to insist on a right or taking affirmative steps which would not be required until the other party to the contract had performed a condition required of him will not of itself work an estoppel. It is only when the waiver causes the other party to the contract to change his position to his 'detriment, which he would not have done save for his reliance upon the conduct of the other party, that an estoppel results. 26 C.J., pp. 279, 280, § 351; Vance on Insurance, 451 et seq.; Continental Ins. Co. of New York v. Portwood, 184 Okl. 22, 84 P.2d 435; Leisen v. St. Paul Fire & Marine Ins. Co., 20 N.D. 316, 127 N.W. 837, 30 L.R.A.,N.S., 539; Draper v. Oswego County Fire Relief Ass’n, 190 N.Y. 12, 82 N.E. 755. The general rule is that the mere investigation of a loss under an insurance contract of itself will not obviate the necessity of notice or proof of loss. It is only when such investigation is carried on under such circumstances as to reasonably lead the insured to conclude that nothing more will be required that an estoppel will result, 26 C.J. 403, and this seems to be the rule in Oklahoma. Continental Ins. Co. of New York v. Portwood, supra. Therefore, even if we assume that Standard caused the investigator to make a preliminary investigation it is not estopped from asserting the failure of the company to give notice as a defense against liability on the policy, for it conclusively appears that neither the company nor any officer thereof had any knowledge of the investigation. The policy required that immediate written notice be given of any accident with the attendant circumstances surrounding it. This the Company failed, to do. How could it have been misled into failure to give notice by an investigation of which it had no knowledge?
The judgment is affirmed.
Herein called Standard.
Herein called the Company.
Herein called the appellant.
Question: What is the second general issue in the case, other than economic activity and regulation - commercial disputes - insurance disputes?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_source
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
EUGENE ASHE ELECTRIC CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 11330.
Circuit Court of Appeals, Fifth Circuit.
Feb. 12, 1946.
H. C. Wade, of Fort Worth, Tex., for petitioner.
Harold C. Wilkenfeld, Robert N. Anderson, and Louise Foster, Sp. Assts. to the Atty. Gen., Sewall Key, Acting Asst. Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and Ro-llin H. Transue, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C, for respondent.
Before McCORD, WALLER, and LEE, Circuit Judges.
McCORD, Circuit Judge.
This appeal involves income and excess profits taxes of the Eugene Ashe Electric Company for the year 1940.
The important facts are these: The taxpayer is a Texas corporation engaged in the electrical contracting business. In 1940 the- corporation’s capital stock consisted of 250 shares, of which the president, Eugene Ashe, owned 190 shares. On March 20, 1940, the directors of the corporation voted to Ashe a salary of $15,000 for the year 1940, and he was paid the sum of $2,600 during that year; the balance of $12,400 was entered as a credit to his personal account on the books of the company. No payment of this balance was made during the two and one-half month period following the close of the year 1940.
A statement of the taxpayer’s account in the First National Bank of Fort Worth, Texas, disclosed a balance of $11,489.70 on February 21, 1941, and a balance of $5,255.70 on March 15, 1941. The taxpayer also had established credit with the bank in the amount of $100,000 during the years 1940 and 1941. Only $25,000 was drawn against this amount prior to January Í, .1941, and no further withdrawals were made during the following two and one-half months.
The balance sheet of the corporation showed a surplus of $25,654.88 as of January 1, 1941, and cash in the bank of $4,267.29.
The taxpayer filed its return o.n the accrual basis, and Ashe filed his return on the cash receipts basis. For the year in question Ashe did not report the $12,400 as income in his original return, but after having the facts called to his attention by a revenue agent and after talking the matter over with his accountant, he filed an amended return on December 27, 1941, in which the additional amount was reported. The evidence is without dispute that Ashe could have drawn checks on the account of the company without the signature of anyone else.
In reaching' its determination that the salary of the president of the corporation was not a deductible business expense, the Tax Court found that the surplus account did not represent the true financial condition of the corporation, since certain hotel bonds were carried on the books at $10,000, whereas such bonds were admittedly worthless in 1935, and it further found that the corporation made it a practice to carry worthless accounts and notes on the books at face value.
The corporation may not escape the penalty of the statute by claiming constructive payment when in fact no payment had been actually made. For the taxpayer to come within the legislative grace granted by the Congress and to claim and secure the deduction, it must bring its case within the terms of the statute as written. Section 24 (c), Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 24 (c) ; Helvering v. Price, 309 U.S. 409, 60 S.Ct. 673, 84 L.Ed. 836; Massachusetts Mutual Life Ins. Co. v. United States, 288 U.S. 269, 270, 275, 53 S.Ct. 337, 77 L.Ed. 739; Eckert v. Burnet, 283 U.S. 140, 141, 51 S.Ct. 373, 75 L.Ed. 911; White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 83 L.Ed. 172; Deputy v. DuPont, 308 U.S. 488, 493, 60 S.Ct. 363, 84 L.Ed. 416; New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348; P. G. Lake v. Commissioner, 5 Cir., 148 F.2d 898; Quinn v. Commissioner, 5 Cir., 111 F.2d 372; Hart v. Commissioner, 1 Cir., 54 F.2d 848.
The decision of the Tax Court is Affirmed.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_typeiss
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Peter Joseph CALDARERA, Jr., etc., et al., Plaintiffs-Appellees, v. EASTERN AIRLINES, INC., and United States of America, Defendants-Appellants.
No. 82-3186.
United States Court of Appeals, Fifth Circuit.
May 27, 1983.
Deutsch, Kerrigan & Stiles, Francis G. Weller, Marc J. Yellin, New Orleans, La., for defendants-appellants.
Joseph S. Cage, Jr., U.S. Atty., John R. Halliburton, Asst. U.S. Atty., Shreveport, La., H. Richmond Fisher, U.S. Dept, of Justice, Torts Branch, Civ. Div., Washington, D.C., Elizabeth A. O’Conwell, Asst. U.S. Atty., New Orleans, La., for U.S.
Camp, Carmouche, Palmer, Barsh & Hunter, David R. Frohn, Edward M. Carmouche, Lake Charles, La., for plaintiffsappellees.
Before RUBIN, GARZA and WILLIAMS, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
After a trial in which the sole issue was the amount of damages caused by the death of three persons in a plane crash, the jury returned a verdict of $937,500 against Eastern Airlines in favor of Peter Caldarera for the death of his mother, wife, and eight-year-old son and a verdict of the same amount in favor of Christopher Moore Caldarera, who was four years old at the time of the disaster, for loss of his mother. The district court returned a verdict under the Federal Tort Claims Act against the United States, as joint defendant, in favor of Christopher for $400,000 and in favor of Peter for $797,480. On post-trial motions, the court refused to alter the jury award in favor of Peter, but reduced the award in favor of Christopher to $600,000. Eastern contends that opposing counsel took an unfair shot at it in closing argument, the trial court improperly excluded evidence of Peter’s remarriage, the verdict was excessive, and the jury should have been polled post-discharge about its verdict because its award of identical amounts on each of the plaintiffs’ entirely distinct claims indicates a misunderstanding of their instructions. We find no reversible error in the trial or in the court’s refusal to interrogate the jury after its discharge, but we grant a new trial on the quantum of damages unless the plaintiffs accept a remittitur reducing the awards to the maxima we consider allowable on the record — $797,480 for Peter and $300,000 for Christopher.
I.
The Caldareras’ counsel concedes that he made an improper argument to the jury. The suit was tried in Lake Charles, Louisiana, home of the plaintiffs and their counsel, the claim against Eastern to a jury, and the claim against the United States to the court. In his final argument, plaintiffs’ counsel told the jury:
Then he [Eastern’s counsel] talked about community standards. He is coming over here from New Orleans and he is going to argue to a jury community standards, to tell you about community standards. Six years ago Mr. Weller’s client took a member of our community’s money for plane tickets. He put them on a plane and killed them. Then they hired a lawyer to come back to this community and tell you three words. I can sum up what Eastern Airlines’ position is in this case in three words. Life is cheap. That is what they told you. Let me tell you something. Life may be cheap in New Orleans, or New York, or wherever Eastern is based, where people will slit your throat on the street to get the money out of your pocket. But life in Southwest Louisiana is precious....
Eastern immediately objected to this patently improper argument, but did not ask for a mistrial. The district judge promptly instructed the jury to ignore the remark. Eastern did not object to the instruction, ask for an additional instruction, or at any time later during the trial seek a mistrial.
The only question for us is whether the judge should have ordered a new trial because the damage done by this inflammatory argument was irreparable. A trial judge is generally better able than an appellate court to evaluate the prejudice flowing from improper jury arguments. His denial of a motion for new trial based on improper statements is reversible only for abuse of discretion. The district judge, who has had long trial experience on both the state and federal bench, was best able to measure the impact of improper argument, the effect of the conduct on the jury, and the results of his efforts to control it. Our review is not only hindsight, but is based on a written record with no ability to assess the impact of the statement on the jury or to sense the atmosphere of the courtroom. Eastern’s failure to move for a mistrial is also significant. By doing so, and by acquiescing in the court’s corrective charge, it got a chance to see the verdict and then to seek to overturn it. Accordingly, we affirm the trial judge’s determination that the effect of the improper argument was sufficiently dissipated by his instruction.
II.
This diversity case was governed by Louisiana law. Louisiana forbids evidence of remarriage in a suit seeking damages for the loss of a spouse. This precept is followed in most other jurisdictions. That rule binds us.
The defendants argue that the Caldareras opened the door to such evidence by testimony concerning whether Peter Caldarera’s emotional problems have persisted since the loss of his mother, wife, and child. They contend that, on cross-examination, they should have been allowed to establish that his more recent emotional difficulties stemmed from his remarriage. These arguments were carefully considered by the trial judge. He found that there were alternative ways to determine, by examining the psychiatrist-witness, whether some of Mr. Caldarera’s problems resulted from causes other than the deaths of his wife, mother and son, and that the prejudicial effect of evidence of the second marriage outweighed its probative value. Fed.R.Evid. 403. His finding is not subject to scrutiny by an appellate Bureau of Weights and Standards that balances the factors gram for gram. The trial court may exercise judgment on the basis of his own opinion of the effect the evidence will have, considering the courtroom surroundings. We do not find reason to question his conclusion.
III.
Eastern contends that the jury’s award of exactly $937,500 in damages for each plaintiff, Peter Caldarera and his son, Christopher, indicates either that the jury misunderstood their instructions or intended to allow that sum to be divided between them. When the jury returned its verdict, the jurors were polled but no inquiry about the amount was requested or made. Seventeen days after the jury had been discharged, Eastern sought to have the court ask the jury the meaning of its verdict. Counsel have found no authority for the court to inquire, after the jurors’ discharge, into whether they really meant what they said. Neither have we. Post-trial inquisition of jurors is not favored, unless there is some showing of prejudicial intrusion into the jury process that may have affected the verdict. We cannot condemn the verdict as defective on its face because the awards were identical, even though the elements of damages sought by the respective plaintiffs differed. The trial court was “satisfied that there was no mistake as to the jury’s intention.” We will not, therefore, order a new trial on a possibility that did not even occur to counsel until the jury had been discharged.
IV.
Eastern argues, alternatively, that the jury verdict should be set aside as excessive. Because the trial judge was required to determine the plaintiffs’ damages and to enter a judgment for that amount against the United States, he calculated independently the recompense due to the plaintiffs for their losses. He recognized that, by his calculations, the jury award to Peter was generous. He chose, however, to grant a remittitur only on the award to Christopher, and he reduced this to $600,000, reasoning that a jury award up to $200,000 more than his own calculation of a reasonable award should be allowed to stand.
For the purpose of assessing damages against the United States, the judge itemized the damages Peter Caldarera suffered as follows:
The trial judge calculated that Christopher had suffered damages of $400,-000 as a result of the loss of the companionship, love, affection, nurture, guidance, and support of his mother, and his physical and mental anguish consequent to his mother’s death. Louisiana law does not give Christopher a cause of action for the loss of his brother and grandmother. The facts found by the district judge affecting the determination of damages are set forth in his opinion. They are, indeed, compelling. The district judge’s assessment of the damages, being findings of fact, are, of course, shielded against reversal unless “clearly erroneous.” Because the assessment of damages for grief and emotional distress is so dependent on the facts and is so largely a matter of judgment, we are chary of substituting our views for those of the trial judge. He has seen the parties and heard the evidence; we have only read papers.
The jury’s assessment of damages is even more weighted against appellate reconsideration, especially when, as in the case of the award to Peter Caldarera, the trial judge has approved it. We do not reverse a jury verdict for excessiveness except on “the strongest of showings.” The jury’s award is not to be disturbed unless it is entirely disproportionate to the injury sustained. We have expressed the extent of distortion that warrants intervention by requiring such awards to be so large as to “shock the judicial conscience,” “so gross or inordinately large as to be contrary to right reason,” so exaggerated as to indicate “bias, passion, prejudice, corruption, or other improper motive,” or as “clearly exceedpng] that amount that any reasonable man could feel the claimant is entitled to.” Nonetheless, when a jury’s award exceeds the bounds of any reasonable recovery, we must suggest a remittitur ourselves or direct the district court to do so. Our power to grant a remittitur is the same as that of the district court. We determine the size of the remittitur in accordance with this circuit’s “maximum recovery rule,” which prescribes that the verdict must be reduced to the maximum amount the jury could properly have awarded.
The loss of a loved one is not measurable in money. Human life is, indeed, priceless. Yet the very purpose of the lawsuit for wrongful death is to fix damages in money for what cannot be measured in money’s worth. Unless we are to accept any verdict, in whatever amount, as a legally acceptable measure, we must review the amount a jury or a trial court awards. Reassessment cannot be supported entirely by rational analysis. It is inherently subjective in large part, involving the interplay of experience and emotions as well as calculation. The sky is simply not the limit for jury verdicts, even those that have been once reviewed.
We look first to the award for Peter Caldarera. Acknowledging the speculation involved both in predicting increases in the minimum wage rate over time and in choosing a discount rate to reduce long-term damages to present value, the district court set a present value of $100,000 on Peter Caldarera’s loss of his wife’s future services. This figure was the estimated cost of replacing those services. Less uncertainty attended valuation of loss of her services from her death until the date of trial. In accordance with the expert testimony of an economist, the trial judge awarded $34,021 for that loss. The parties stipulated that property damage and funeral expenses amounted to $13,459. The trial judge set the total amount allowable for loss of Peter’s wife’s services, funeral expenses, and property damage at $147,021. Because this sum represents an estimate of the economic value of goods and services, without any emotional overlay, the jury’s award for these items of damage should have corresponded closely to this figure. The judge set the amount for Peter’s loss of his 63-year-old mother at $100,000 and for the loss of his eight-year-old son at $150,-000. These awards are generous, but they cannot be viewed as excessive. If we add 50% to each, however, we arrive at an amount that appears to us to be a maximum. Even when we take into account the trauma sustained by Mr. Caldarera as a result of the multiple loss he suffered in a single catastrophe, we consider that the maximum verdict against Eastern that the trial judge should have permitted to stand, without remittitur, for Peter’s loss of his mother was $150,000, and, for the loss of his son, $225,000.
The sum of $400,000 awarded by the trial judge to Peter Caldarera for the loss of the companionship, love, and affection of his wife is substantially greater than any we have discovered for the emotional damages resulting from loss of a spouse save one Seventh Circuit decision refusing to reduce a jury verdict of $419,000 for loss of a husband. While the factfinder may well deem the loss of a spouse more grievous than the loss of a mother or son, and thus deserving of greater compensation, on the record in this case, we consider the sum of $250,000 to be the maximum award that could be allowed for the emotional losses arising from the death of Mrs. Caldarera, apart from the economic loss. This is equivalent to an annuity of $21,231 per year for each year of Peter’s remaining life expectancy for his emotional loss alone. The maximum total sum that we think Peter Caldarera could be awarded is thus computed;
Death of mother 150,000
Death of son 225,000
Death of wife 250,000
Other damages 147.021
$772,021
The district judge awarded a total of $797,480, with a somewhat different allocation of the amounts for individual items. This total is so close to the amount we have computed, albeit in a different fashion, that we affirm the award against the United States. However, the total is likewise, for the reasons we have expressed, the maximum that we think any reasonable jury could have awarded. We find the jury award in excess of this sum to be so gross as to be contrary to reason and must, therefore, reverse the trial judge’s action in denying the motion for a new trial. We do not overlook the calamitous effect of the simultaneous bereavement. While the hurt was literally unmeasurable, we must deal with it in such measure as is here sought and is the law’s only recompense, a valuation in dollars. We, therefore, order a new trial unless Mr. Caldarera is willing to accept a remittitur of the award against Eastern to the total amount of $797,480. We affirm the judgment in his favor against the United States in this amount. If Mr. Caldarera is unwilling to accept the remittitur on the Eastern claim, he may have a new trial on his claim against it.
We must also review the award for Christopher’s loss of his mother. Christopher was then four years old, in normal health, and required no exceptional care. The verdict, even as reduced by the remittitur, exceeds any amount that a reasonable person could have awarded him. Our judgment is that his award should not exceed $300,000, which is equivalent to an annuity of $24,986 a year for each year of his mother’s full life expectancy.
We, therefore, order a new trial of the claims against Eastern unless Mr. Caldarera, as tutor for his minor son, will accept a remittitur of the verdict against Eastern to the amount of $300,000, and, in his own behalf to the amount of $797,480. We affirm the judgment against the United States in favor of Mr. Caldarera for $797,-480, and, reducing the amount to $300,000, affirm the judgment against the United States in favor of Christopher Caldarera.
For these reasons, the case is REMANDED to the district court for further proceedings in accordance with this opinion.
. The case arose out of the crash in New York of an Eastern plane in which 113 of 124 people aboard were killed. In multidistrict proceedings in the Eastern District of New York, the United States conceded liability to the victims of the plane crash for the negligence of air traffic controllers at New York’s Kennedy International Airport. A judgment declaring its liability to the plaintiffs in this case was entered in the Western District of Louisiana, on the same day the jury awarded damages, pursuant to the joint motion of the plaintiffs and the United States. The airline’s liability to all victims of the plane crash was decided by a jury in the Eastern District of New York. The jury’s verdict was affirmed on appeal to the Second Circuit. In re Aircraft Disaster, 635 F.2d 67 (2d Cir.1980). After the liability determination, the damage suits of the individual plaintiffs were returned to the districts in which they had originally been brought.
. United States v. Sudderth, 681 F.2d 990, 996 (5th Cir.1982) (ruling on motion for new trial immune from appeal absent abuse of discretion); Nevels v. Ford Motor Co., 439 F.2d 251, 258 (5th Cir.1971) (disposition of motion for mistrial on basis of improper jury argument reversible only for abuse of discretion).
. A motion for new trial may be served not later than ten days after the entry of judgment on the jury’s verdict. Fed.R.Civ.P. 59(b). By contrast, a motion for mistrial is properly made when the event giving rise to the motion occurs.
. McFarland v. Illinois Central Railroad Co., 241 La. 15, 127 So.2d 183, 186 (La.1961); Lofton v. Cade, 359 So.2d 1074, 1075 (La.App.1978); Evans v. Chevron Oil Co., 438 F.Supp. 1097, 1104 (E.D.La.1977), aff’d without opinion, 616 F.2d 565 (5th Cir.1980).
. Annot., 88 A.L.R.3d 926, 928-37 (1978). Even if the evidentiary rules of New York, the situs of the plane crash, governed admissibility of evidence of Peter Caldarera’s remarriage, that would not avail the defendants. Like Louisiana, New York bars consideration of remarriage to reduce or mitigate damages in a wrongful death action. Id.
. Conway v. Chemical Leaman Tank Lines, Inc., 525 F.2d 927 (5th Cir.), modified on reh’g, 540 F.2d 837 (5th Cir.1976) (state law on admissibility of evidence of remarriage in wrongful death action will be followed in diversity case); Bailey v. Southern Pacific Transp. Co., 613 F.2d 1385, 1388 (5th Cir.) (per curiam), cert. denied, 449 U.S. 836, 101 S.Ct. 109, 66 L.Ed.2d 42 (1980) (following Texas law that evidence of remarriage not admissible for purposes of mitigating damages in wrongful death action). Contra Papizzo v. O. Robertson Transp., Ltd., 401 F.Supp. 540 (E.D.Mich.1975) (admissibility of evidence of remarriage in wrongful death action is procedural question, governed by federal law).
. Fed.R.Evid. 403 reads:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
. Stein v. New York, 346 U.S. 156, 178, 73 S.Ct. 1077, 1089, 97 L.Ed. 1522 (1953).
. Wilkerson v. Amco Corp., 703 F.2d 184 (5th Cir.1983); O’Rear v. Fruehauf Corp., 554 F.2d 1304 (5th Cir.1977); United States v. Riley, 544 F.2d 237 (5th Cir.1976).
. Caldarera v. Eastern Airlines, Inc., 529 F.Supp. 634, 642 (W.D.La.1982).
. On behalf of Christopher, Peter Caldarera has accepted the verdict as reduced, waiving the right to a new trial.
. See La.Civ.Code Ann. art. 2315 (West Supp. 1982).
. 529 F.Supp. at 637-40.
. Fed.R.Civ.P. 52(a).
. Shows v. Jamison Bedding, Inc., 671 F.2d 927, 934 (5th Cir.1982).
. Martin v. City of New Orleans, 678 F.2d 1321, 1327 (5th Cir.1982); Shows, 671 F.2d at 934; Bridges v. Groendyke Transport, Inc., 553 F.2d 877, 880 (5th Cir.1977).
. Complete Auto Transit, Inc. v. Floyd, 249 F.2d 396, 399 (5th Cir.), cert. denied, 356 U.S. 949, 78 S.Ct. 913, 2 L.Ed.2d 843 (1958).
. Allen v. Seacoast Products, Inc., 623 F.2d 355, 364 (5th Cir.1980).
. Bridges, 553 F.2d at 880 (emphasis in original).
. Howell v. Marmpegaso Compania Naviera, 536 F.2d 1032, 1034-35 (5th Cir.1976). See, e.g., Shingleton v. Armor Velvet Corp., 621 F.2d 180, 182, 184 (5th Cir.1980) (per curiam) (appellate court remitted jury verdict because of obvious jury miscalculation); Stapleton v. Kawasaki Heavy Industries, Ltd., 608 F.2d 571, 574 (5th Cir.1979), modified on another ground, 612 F.2d 905 (5th Cir.1980) (trial court directed to enter specified remittitur of jury verdict in amount less than it had previously entered); Abernathy v. Southern Pacific Co., 426 F.2d 512, 514-15 (5th Cir.1970) (trial court directed to enter specified remittitur of jury verdict).
. Carlton v. H.C. Price Co., 640 F.2d 573, 582 n. 14 (5th Cir.1981); Stapleton v. Kawasaki Heavy Industries, Ltd., 608 F.2d 571, 574 n. 7 (5th Cir.1979), modified on another ground, 612 F.2d 905 (5th Cir.1980).
. See Ayala v. Bailey Elec. Co., 318 So.2d 645, 652 (La.App.), writ issued, 322 So.2d 770 (La.1975) (determining cost of replacing services is one method of measuring value of loss).
. E.g., Cheatham v. City of New Orleans, 378 So.2d 369, 377 (La.1979) (jury award of $200,-000 for 22-year-old widow’s loss of love and affection of 27-year-old husband was reinstated after trial judge reduced award to $50,000); Sibley v. Menard, 398 So.2d 590 (La.App.1980), writ denied, 400 So.2d 211 (La.1981), affd on reh’g, 404 So.2d 980 (La.App.1981) (widow awarded $100,000 for loss of husband’s love and affection); Domangue v. Eastern Air Lines, Inc., 542 F.Supp. 643 (E.D.La.1982) (widow received $100,000 for loss of husband’s love, affection, and companionship after 10-year marriage); Szimonisz v. United States, 537 F.Supp. 147 (D.Or.1982) (widow received $100,000 for loss of husband’s society and companionship); Faust v. South Carolina Hwy. Dept., 527 F.Supp. 1021 (D.S.C.1981) (widow received $60,000 for loss of husband’s love, affection, care, attention, companionship, comfort, and protection); Stanford v. McLean Trucking Co., 506 F.Supp. 1252 (E.D.Tex.1981) (widower of one decedent received $75,000 for loss of wife’s consortium and society, and widower of other decedent received $100,000 for loss of wife’s consortium and society); Abille v. United States, 482 F.Supp. 703 (N.D.Cal.1980) (widow received $55,000 for loss of husband’s care, comfort, and consortium); Wyatt v. United States, 470 F.Supp. 116 (W.D.Mo.), aff'd, 610 F.2d 545 (8th Cir.1979) (per curiam) (widower awarded $111,211 for loss of love, companionship, and consortium of wife with life expectancy of 12.2 years). But see Huff v. White Motor Corp., 609 F.2d 286, 297 (7th Cir.1979) (Total award for loss of husband to whom the plaintiff had been married for 30 years was $700,000. Eliminating pecuniary loss, the court found the balance $414,400 to be for loss of husband’s love, affection, counsel. It said, “Therefore, although we are left with the uncomfortable feeling that the verdict is too high, we think we would be exceeding the limits of our authority if we were to disturb it.’.’).
. This is based on the assumption that Peter Caldarera had a life expectancy of 37.8 years and that the funds could be invested at 8% per annum, which is somewhat less than the current rate paid on 52-week U.S. Treasury bills. The trial judge’s award of $400,000, by the same computation, would be equivalent to an annuity of $33,970 per year. If invested in long-term tax-exempt municipal bonds, now available at a yield of 9% per annum, an award of $250,000 would produce $22,500 a year free of federal income tax, without invading principal, and an award of $400,000 would produce $36,000 annually, without invasion of the principal.
. This is based on the assumption that Mrs. Caldarera had a life expectancy of 42.4 years and that the funds could be invested at 8% per annum, which is somewhat less than the current rate on 52-week U.S. Treasury bills. However, if invested in long-term municipal bonds, the sum could be invested in federally tax-exempt securities yielding 9% per annum and could produce $27,000 a year free of federal income tax without invasion of the principal.
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_r_stid
|
54
|
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.
CASH v. HUFF.
No. 5236.
Circuit Court of Appeals, Fourth Circuit.
April 12, 1944.
Hiram M. Smith, of Richmond, Va. for appellant.
George R. Humrickhouse, Asst. U. S. Atty., of Richmond, Va. (Harry H. Holt, Jr., U. S. Atty., of Hampton, Va., on the brief), for appellee.
Before PARKER, SOPER, and NORTHCOTT, Circuit Judges.
PER CURIAM.
This is an appeal from an order dismissing a writ of habeas corpus and remanding the prisoner to custody. Petitioner was convicted of murder and sentenced to life imprisonment by the United States District Court for the District of Columbia. He asks to be released on writ of habeas corpus on the ground that the trial court received in evidence against him on his trial a confession which he contends was extorted from him in violation of his rights as laid down in the case of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, which was an appeal from a convicr tion in a criminal case. There was no showing of any such gross violation of constitutional right as would deny the prisoner the substance of a fair trial and thus oust the court of jurisdiction to impose sentence. What we have is nothing more than an attempt by habeas corpus to review the proceedings had on the trial. This the prisoner may not do. The judgment appealed from will be affirmed on the authority of Eury v. Huff, 4 Cir., 141 F.2d 554; Sanderlin v. Smyth, 4 Cir., 138 F.2d 729; Burall v. Johnson, 9 Cir., 134 F.2d 614, certiorari denied 319 U.S. 768, 63 S.Ct. 1327, 87 L.Ed. 1717, rehearing denied 320 U.S. 810, 64 S.Ct. 30; and Graham v. Squier, 9 Cir., 132 F.2d 681, certiorari denied Graham v. Warden, U. S. Penitentiary, 318 U.S. 777, 63 S.Ct. 830.
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:
|
sc_precedentalteration
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the opinion effectively says that the decision in this case "overruled" one or more of the Court's own precedents. Alteration also extends to language in the majority opinion that states that a precedent of the Supreme Court has been "disapproved," or is "no longer good law". Note, however, that alteration does not apply to cases in which the Court "distinguishes" a precedent.
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA et al. v. CASEY, GOVERNOR OF PENNSYLVANIA, et al.
No. 91-744.
Argued April 22, 1992
Decided June 29, 1992
O’Connor, Kennedy, and Soutee, JJ., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, in which Blackmun and Stevens, JJ., joined, an opinion with respect to Part V-E, in which Stevens, J., joined, and an opinion with respect to Parts IV, V-B, and V-D. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 911. Black-mun, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, post, p. 922. Rehnquist, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which White, Scalia, and Thomas, JJ., joined, post, p. 944. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., and White and Thomas, JJ., joined, post, p. 979.
Kathryn Kolbert argued the cause for petitioners in No. 91-744 and respondents in No. 91-902. With her on the briefs were Janet Benshoof Lynn M. Paltrow, Rachael N. Pine, Steven R. Shapiro, John A. Powell, Linda J. Wharton, and Carol E. Tracy.
Ernest D. Preate, Jr., Attorney General of Pennsylvania, argued the cause for respondents in No. 91-744 and petitioners in No. 91-902. With him on the brief were John G. Knorr III, Chief Deputy Attorney General, and Kate L. Mershimer, Senior Deputy Attorney General.
Solicitor General Starr argued the cause for the United States as amicus curiae in support of respondents in No. 91-744 and petitioners in No. 91-902. With him on the brief were Assistant Attorney General Gerson, Paul J. Larkin, Jr., Thomas G. Hungar, and Alfred R. Moilin.
Together with No. 91-902, Casey, Governor of Pennsylvania, et al. v. Planned Parenthood of Southeastern Pennsylvania et al., also on certio-rari to the same court.
Briefs of amici curiae were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, Mary Ellen Burns, Chief Assistant Attorney General, and Sanford M. Cohen, Donna I. Dennis, Marjorie Fujiki, and Shelley B. Mayerr, Assistant Attorneys General, and John McKernan, Governor of Maine, and Michael E. Carpenter, Attorney General, Richard Blumenthal, Attorney General of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Warren Price HI, Attorney General of Hawaii, Roland W. Burris, Attorney General of Illinois, Bonnie J. Campbell, Attorney General of Iowa, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, James E. O’Neil, Attorney General of Rhode Island, Dan Morales, Attorney General of Texas, Jeffrey L. Amestoy, Attorney General of Vermont, and John Payton, Corporation Counsel of District of Columbia; for the State of Utah by R. Paul Van Dam, Attorney General, and Mary Anne Q. Wood, Special Assistant Attorney General; for the City of New York et al. by O. Peter Sherwood, Conrad Harper, Janice Goodman, Leonard J. Koerner, Lorna Bade Goodman, Gail Rubin, and Julie Mertus; for 178 Organizations by Pamela S. Karlan and Sarah Weddington; for Agudath Israel of America by David Zwiebel; for the Alan Guttmacher Institute et al. by Colleen K. Connell and Dorothy B. Zimbrakos; for the American Academy of Medical Ethics by Joseph IK Dellapenna; for the American Association of Prolife Obstetricians and Gynecologists et al. by William Bentley Ball, Philip J. Murren, and Maura K. Quinlan; for the American College of Obstetricians and Gynecologists et al. by Carter G. Phillips, AnnE. Allen, Laurie R. Rockett, Joel I. Klein, Nadine Taub, and Sarah C. Carey; for the American Psychological Association by David W. Ogden; for Texas Black Americans for Life by Lawrence J. Joyce and Craig H. Greenwood; for Catholics United for Life et al. by Thomas Patrick Monaghan, Jay Alan Sekulow, Walter M. Weber, Thomas A. Glessner, Charles E. Rice, and Michael J. Laird; for the Elliot Institute for Social Sciences Research by Stephen R. Kaufmann; for Feminists for Life of America et al. by Keith A Fournier, John G. Stepanovich, Christine Smith Torre, Theodore H. Amshoff, Jr., and Mary Dice Grenen; for Focus on the Family et al. by Stephen H. Galebach, Gregory J. Granitto, Stephen W. Reed, David L. Llewellyn, Jr., Benjamin W. Bull, and Leonard J. Pranschke; for the Knights of Columbus by Carl A Anderson; for the Life Issues Institute by James Bopp, Jr., and Richard E. Coleson; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Julius L. Chambers, Ronald L. EUis, and Alice L. Brown; for the National Legal Foundation by Robert K. SUolrood; for National Right to Life, Inc., by Messrs. Bopp and Coleson, Robert A Destro, and A Eric Johnston; for the Pennsylvania Coalition Against Domestic Violence et al. by Phyllis Gelman; for the Rutherford Institute et al. by Thomas W. Strahan, John IK Whitehead, Mr. Johnston, Stephen E. Hurst, Joseph Secóla, Thomas S. Neuberger, J. Brian Heller, Amy Dougherty, Stanley R. Jones, David Melton, Robert R. Melnick, William Bonner, IK Charles Bundren, and James Knicely; for the Southern Center for Law & Ethics by Tony G. Miller; for the United States Catholic Conference et al. by Mark E. Chopko, Phillip H. Harris, Michael K. Whitehead, and Forest D. Montgomery; for University Faculty for Life by Clarke D. Forsythe and Victor G. Rosenblum; for Certain American State Legislators by Paul Benjamin Linton; for 19 Arizona Legislators by Ronald D. Moines; for Representative Henry J. Hyde et al. by Albert P. Blaustein and Kevin J. Todd; for Representative Don Edwards et al. by Walter Dellinger and Lloyd N. Cutler; and for 250 American Historians by Sylvia A ¿am
Justice O’Connor, Justice Kennedy, and Justice Sou-ter
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, an opinion with respect to Part V-E,
in which Justice Stevens joins, and an opinion with respect to Parts IV, V-B, and V-D.
I
Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U. S. 113 (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. See Brief for Respondents 104-117; Brief for United States as Amicus Curiae 8.
At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons. Stat. §§3203-3220 (1990). Relevant portions of the Act are set forth in the Appendix. Infra, at 902. The Act requires that a woman seeking an abortion give her informed consent prior to the abortion procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed. § 3205. For a minor to obtain an abortion, the Act requires the informed consent of one of her parents, but provides for a judicial bypass option if the minor does not wish to or cannot obtain a parent’s consent. § 3206. Another provision of the Act requires that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion. §3209. The Act exempts compliance with these three requirements in the event of a “medical emergency,” which is defined in §3203 of the Act. See §§3203, 3205(a), 3206(a), 3209(c). In addition to the above provisions regulating the performance of abortions, the Act imposes certain reporting requirements on facilities that provide abortion services. §§ 3207(b), 3214(a), 3214(f).
Before any of these provisions took effect, the petitioners, who are five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services, brought this suit seeking declaratory and injunctive relief. Each provision was challenged as unconstitutional on its face. The District Court entered a preliminary injunction against the enforcement of the regulations, and, after a 3-day bench trial, held all the provisions at issue here unconstitutional, entering a permanent injunction against Pennsylvania’s enforcement of them. 744 F. Supp. 1323 (ED Pa. 1990). The Court of Appeals for the Third Circuit affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement. 947 F. 2d 682 (1991). We granted certiorari. 502 U. S. 1056 (1992).
The Court of Appeals found it necessary to follow an elaborate course of reasoning even to identify the first premise to use to determine whether the statute enacted by Pennsylvania meets constitutional standards. See 947 F. 2d, at 687-698. And at oral argument in this Court, the attorney for the parties challenging the statute took the position that none of the enactments can be upheld without overruling Roe v. Wade. Tr. of Oral Arg. 5-6. We disagree with that analysis; but we acknowledge that our decisions after Roe cast doubt upon the meaning and reach of its holding. Further, The Chief Justice admits that he would overrule the central holding of Roe and adopt the rational relationship test as the sole criterion of constitutionality. See post, at 944, 966. State and federal courts as well as legislatures throughout the Union must have guidance as they seek to address this subject in conformance with the Constitution. Given these premises, we find it imperative to review once more the principles that define the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.
After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.
It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.
II
Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The controlling word in the cases before us is “liberty.” Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U. S. 623, 660-661 (1887), the Clause has been understood to contain a substantive component as well, one “barring certain government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U. S. 327, 331 (1986). As Justice Brandéis (joined by Justice Holmes) observed, “[djespite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.” Whitney v. California, 274 U. S. 357, 373 (1927) (concurring opinion). “[TJhe guaranties of due process, though having their roots in Magna Carta’s ‘per legem ter rae’ and considered as procedural safeguards ‘against executive usurpation and tyranny/ have in this country ‘become bulwarks also against arbitrary legislation.’ ” Poe v. Ullman, 367 U. S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U. S. 516, 532 (1884)).
The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e. g., Duncan v. Louisiana, 391 U. S. 145, 147-148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments to the Constitution. See Adamson v. California, 332 U. S. 46, 68-92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.
It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. See Michael H. v. Gerald D., 491 U. S. 110, 127-128, n. 6 (1989) (opinion of Scalia, J.). But such a view would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was file-gal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U. S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U. S. 78, 94-99 (1987); in Carey v. Population Services International, 431 U. S. 678, 684-686 (1977); in Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965), as well as in the separate opinions of a majority of the Members of the Court in that case, id., at 486-488 (Goldberg, J., joined by Warren, C. J., and Brennan, J., concurring) (expressly relying on due process), id., at 500-502 (Harlan, J., concurring in judgment) (same), id., at 502-507 (White, J., concurring in judgment) (same); in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); and in Meyer v. Nebraska, 262 U. S. 390, 399-403 (1923).
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Arndt. 9. As the second Justice Harlan recognized:
“[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints,... and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. UUman, supra, at 543 (opinion dissenting from dismissal on jurisdictional grounds).
Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U. S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U. S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see, e. g., Washington v. Harper, 494 U. S. 210, 221-222 (1990); Winston v. Lee, 470 U. S. 753 (1985); Rochin v. California, 342 U. S. 165 (1952).
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed:
“Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it eould not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.” Poe v. Ullman, 367 U. S., at 542 (opinion dissenting from dismissal on jurisdictional grounds).
See also Rochin v. California, supra, at 171-172 (Frankfurter, J., writing for the Court) (“To believe that this judicial exercise of judgment could be avoided by freezing ‘due process of law’ at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges”).
Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.
It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other. See, e. g., Ferguson v. Skrupa, 372 U. S. 726 (1963); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Thus, while some people might disagree about whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled, we have ruled that a State may not compel or enforce one view or the other. See West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943); Texas v. Johnson, 491 U. S. 397 (1989).
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U. S., at 685. Our cases recognize “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, supra, at 453 (emphasis in original). Our precedents “have respected the private realm of family life which the state cannot enter.” Prince v. Massachusetts, 321 U. S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
These considerations begin our analysis of the woman’s interest in terminating her pregnancy but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision -has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.
It should be recognized, moreover, that in some critical respects the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International afford constitutional protection. We have no doubt as to the correctness of those decisions. They support the reasoning in Roe relating to the woman’s liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it. As with abortion, reasonable people will have differences of opinion about these matters. One view is based on such reverence for the wonder of creation that any pregnancy ought to be welcomed and carried to full term no matter how difficult it will be to provide for the child and ensure its well-being. Another is that the inability to provide for the nurture and care of the infant is a cruelty to the child and an anguish to thé parent. These are intimate views with infinite variations, and their deep, personal character underlay our decisions in Griswold, Eisenstadt, and Carey. The same concerns are present when the woman confronts the reality that, perhaps despite her attempts to avoid it, she has become pregnant.
It was this dimension of personal liberty that Roe sought to protect, and its holding invoked the reasoning and the tradition of the precedents we have discussed, granting protection to substantive liberties of the person. Roe was, of course, an extension of those cases and, as the decision itself indicated, the separate States could act in some degree to further their own legitimate interests in protecting prenatal life. The extent to which the legislatures of the States might aet to outweigh the interests of the woman in choosing to terminate her pregnancy was a subject of debate both in Roe itself and in decisions following it.
While we appreciate the weight of the arguments made on behalf of the State in the cases before us, arguments which in their ultimate formulation conclude that Roe should be overruled, the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis. We turn now to that doctrine.
hH I — I
A
The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court History 13,16. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.
Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an “inexorable command,” and certainly it is not such in every constitutional case, see Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405-411 (1932) (Brandéis, J., dissenting). See also Payne v. Tennessee, 501 U. S. 808, 842 (1991) (Souter, J., joined by Kennedy, J., concurring); Arizona v. Rumsey, 467 U. S. 203, 212 (1984). Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability, Swift & Co. v. Wickham, 382 U. S. 111, 116 (1965); whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, e. g., United States v. Title Ins. & Trust Co., 265 U. S. 472, 486 (1924); whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, see Patterson v. McLean Credit Union, 491 U. S. 164, 173-174 (1989); or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification, e.g., Burnet, supra, at 412 (Brandéis, J., dissenting).
So in this case we may enquire whether Roe’s central rule has been found unworkable; whether the rule’s limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it; whether the law’s growth in the intervening years has left Roe’s central rule a doctrinal anachronism discounted by society; and whether Roe’s premises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.
1
Although Roe has engendered opposition, it has in no sense proven “unworkable,” see Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 546 (1985), representing as it does a simple limitation beyond which a state law is unenforceable. While Roe has, of course, required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, and although the need for such review will remain as a consequence of today’s decision, the required determinations fall within judicial competence.
2
The inquiry into reliance counts the cost of a rule’s repudiation as it would fall on those who have relied reasonably on the rule’s continued application. Since the classic case for weighing reliance heavily in favor of following the earlier rule occurs in the commercial context, see Payne v. Tennes see, supra,, at 828, where advance planning of great precision is most obviously a necessity, it is no cause for surprise that some would find no reliance worthy of consideration in support of Roe.
While neither respondents nor their amici in so many words deny that the abortion right invites some reliance prior to its actual exercise, one can readily imagine an argument stressing the dissimilarity of this case to one involving property or contract. Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but for Roe’s holding, such behavior may appear to justify no reliance claim. Even if reliance could be claimed on that unrealistic assumption, the argument might run, any reliance interest would be de minimis. This argument would be premised on the hypothesis that reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.
To eliminate the issue of relianee that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in relianee on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. See, e. g., R. Petehesky, Abortion and Woman’s Choice 109, 138, n. 7 (rev. ed. 1990). The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.
3
No evolution of legal principle has left Roe’s doctrinal footings weaker than they were in 1973. No development of constitutional law since the ease was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.
It will be recognized, of course, that Roe stands at an intersection of two lines of decisions, but in whichever doctrinal category one reads the case, the result for present purposes will be the same. The Roe Court itself placed its holding in the succession of cases most prominently exemplified by Griswold v. Connecticut, 381 U. S. 479 (1965). See Roe, 410 U. S., at 152-153. When it is so seen, Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child. See, e. g., Carey v. Population Services International, 431 U. S. 678 (1977); Moore v. East Cleveland, 431 U. S. 494 (1977).
Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe’s view that a State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims. Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 278 (1990); cf., e. g., Riggins v. Nevada, 504 U. S. 127, 135 (1992); Washington v. Harper, 494 U. S. 210 (1990); see also, e. g., Rochin v. California, 342 U. S. 165 (1952); Jacobson v. Massachusetts, 197 U. S. 11, 24-30 (1905).
Finally, one could classify Roe as sui generis. If the case is so viewed, then there clearly has been no erosion of its central determination. The original holding resting on the concurrence of seven Members of the Court in 1973 was expressly affirmed by a majority of six in 1983, see Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (Akron I), and by a majority of five in 1986, see Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, expressing adherence to the constitutional ruling despite legislative efforts in some States to test its limits. More recently, in Webster v. Reproductive Health Services, 492 U. S. 490 (1989), although two of the present authors questioned the trimester framework in a way consistent with our judgment today, see id., at 518 (Rehnquist, C. J., joined by White and Kennedy, JJ.); id., at 529 (O’Connor, J., concurring in part and concurring in judgment), a majority of the Court either decided to reaffirm or declined to address the constitutional validity of the central holding of Roe. See Webster, 492 U. S., at 521 (Rehnquist, C. J., joined by White and Kennedy, JJ.); id., at 525-526 (O’Connor, J., concurring in part and concurring in
Question: Did the the decision of the court overrule one or more of the Court's own precedents?
A. Yes
B. No
Answer:
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songer_summary
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
SHEAF v. MINNEAPOLIS, ST. P. & S. S. M. R. CO. et al.
No. 13488.
Circuit Court of Appeals, Eighth Circuit.
June 18, 1947.
P. W. Lanier, of Fargo, N. D. (P. W. Lanier, Jr., of Fargo, N. D., on the brief), for appellant.
Forclyce W. Crouch, of Minneapolis, Minn. (John F. Sullivan, of Mandan, N.D., and James L. Holland, of Minneapolis, Minn., .on the brief) for appellee Railroad Company.
L. W. Rulien, of Thief River Falls, Minn. (H. O. Chommie, of Thief River Falls, Minn., on the brief), for appellee C. Johnson.
Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.
THOMAS, Circuit Judge.
The appellant, Carl Sheaf, a railroad conductor, brought this action under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51, against the defendant railroad company and C. Johnson, a railroad engineer, for damages for personal injuries sustained by the plaintiff as a result of an alleged unprovoked attack made upon him by Johnson in the yards of the company at the town of Balta, North Dakota, on May 31, 1946. At the time of the injury complained of both Sheaf and Johnson were employed by the company in the operation of a train in interstate commerce.
The pertinent provision of the Federal Employers’ Liability Act upon which the suit is based reads:
“Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while lie is employed by such carrier in such commerce * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier * *
The railroad company moved to dismiss /he action on the ground that the complaint fails to state a claim against it upon which relief can be granted. Johnson moved for a dismissal upon the pleadings on the same ground. Sheaf then asked leave to amend his complaint by alleging diversity of citizenship of the parties.
The court sustained the motion of the railroad company and dismissed the action against the company. The motion of Johnson to dismiss was also granted with leave to the plaintiff to amend his complaint within twenty days. This appeal was taken without the filing of an amendment to the 'complaint.
The plaintiff contends that the court erred in dismissing the complaint as to both defendants in that
1. The complaint alleged a cause of action under the doctrine of respondeat superior ;
2. The complaint alleged a cause of action upon the theory of negligence upon the part of the railroad company both in employing the engineer Johnson with knowledge of his vicious propensities and by ratification of his acts of violence; and
3. The complaint alleged a cause of action against both defendants because Johnson by his assault upon the plaintiff violated a rule of the company and his act was ratified by'the failure of the company to discharge him.
We shall first consider the judgment dismissing the complaint against the defendant Johnson. Since the suit was brought specifically under the Federal Employers’ Liability Act, clearly the court did not err in this particular. Diversity of citizenship was not alleged. Johnson 'was not alleged to be either an employer of the plaintiff or a common carrier. The Act creates no right of action by an employee of a common carrier against his fellow servant. The complaint asserted but one right of recovery for the injury and.recovery can not be had- under that alleged right because the Act is not applicable and the court was, therefore, without jurisdiction to grant tire relief demanded against Johnson. Plaintiff might have amended his complaint, pleaded the necessary jurisdictional facts and sustained his action under the common or statute law of the state, but in the absence of such an amendment the court properly granted Johnson’s motion to dismiss. Wabash Railroad Company v. Hayes 234 U.S. 86, 34 S.Ct. 729, 58 L.Ed. 1226; Second Employers’ Liability Cases, (Mondou v. New York, New Haven & Hartford R. Co.) 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A., N.S., 44.
We next consider the action of the court in dismissing the complaint against the defendant railroad company.
The question presented here is whether the facts alleged in the complaint and admitted by the railroad company’s motion to dismiss are sufficient to establish liability of the company under the statute.
After specifying that the case is brought under the Federal Employers’ Liability Act and stating that plaintiff had been employed by the company for many years _ as a conductor in the operation of trains in interstate commerce, the complaint alleged that about 8:30 A. M. on May 31,, 1946, plaintiff was the conductor in charge of a train operating in interstate commerce by the defendant company on which the defendant Johnson was employed as engineer. The train-had stopped at Balta, North Dakota, under orders to take on stock. As plaintiff Sheaf was passing by the engine on the left side of the train, Johnson came from his side of the train and asked what the delay was about. -Sheaf replied that Johnson knew as much as he did. As Sheaf turned to go back toward the depot he heard Johnson say something about tying up at Orrin. He could not hear exactly what Johnson-said because he was a little hard of hearing, so he said to Johnson, “Come down here and I can talk to you.” To which Johnson replied: “You goddam right I’ll come down.” Johnson then appearing to be mad got down from the engine, ran and grabbed Sheaf and threw him to the ground causing serious, personal injuries for which damages are sought in this suit. The assault was made,, the complaint alleged, without provocation while Johnson was acting within the scope of his employment by the defendant company.
The assault upon Sheaf was made by Johnson in violation of Rule 702 of the defendant company’s Code of Operating Rules which provides that “Employees are prohibited from entering into altercation with any person” and that “Employees who are * * * quarrelsome or otherwise vicious * * shall not be retained in the service.”
Johnson, it was alleged, had been a quarrelsome and vicious person for many years prior to the assault on plaintiff, all of which was known to the railroad company, or which by the exercise of ordinary care should have been known to it. That since the assault the company has ratified the acts of Johnson by retaining him in its service. His employment under the circumstances constituted negligence.
Upon motion by a defendant for the dismissal of a complaint for failure to state a claim upon which relief can be granted, it is the cnily of the court to enter judgment forthwith when it appears that the moving party is entitled to a judgment as a matter of law. Rules 12 and 56 of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c.
Here no genuine issue of negligence is stated in the complaint such as is necessary to preclude a summary judgment for the railroad company. Under the Employers’ Liability Act “Liability arises from negligence not from injury * * L And that negligence must be the cause of the injury.” Ellis v. Union Pacific R. Co., 329 U. S. 649, 653, 67 S.Ct. 598; Brady v. Southern Ry. Co., 320 U.S. 476, 484, 64 S.Ct. 232, 236, 88 L.Ed. 239; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967. The burden is upon the plaintiff to allege and prove that the negligence of the employer was “in whole or in part” the cause of the injury complained of. Ellis v. Union Pacific R. Co., supra; New York Central Railroad Company v. Ambrose, 280 U.S. 486, 489, 50 S.Ct. 198, 74 L.Ed. 562.
Under this Act “the employer’s liability is to be determined under the general rale which defines negligence as the lack of clue care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done.” Tiller v. Atlantic Coast Line R. Co., supra, at page 67, of 318 U.S., at page 451 of 63 S.Ct, 87 L.Ed. 610, 143 A.L.R. 967; Keith v. Wheeling & L. E. Ry. Co., 6 Cir., 160 F.2d 654, 657.
Where, as in this case, an employee of a railroad company is injured by an unprovoked assault of a fellow servant, even though such an assault may be considered negligence rather than a trespass, the employer is not liable unless the aggressor was at the time of the assault acting within the scope of his employment. In the case of Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 124, 67 L.Ed. 299, a judgment was recovered in the state court of Mississippi by the widow of Jesse Green, a conductor on the Gulf & Ship Island Railroad Company, and affirmed by the Supreme Court of the state, for the wanton and willful killing of her husband by one McLendon, the engineer, when the parties were engaged in interstate commerce. Upon appeal to the Supreme Court of the United States the judgment was reversed, and Mr. Justice Holmes, speaking for the court, said:
“The ground on which the Railroad Company was held was that it had negligently employed a dangerous man with notice of his characteristics, and that the killing occurred in the course of the engineer’s employment. But neither allegations por proof present the killing as done to further the master’s business or as anything but a wanton and wilful act done to satisfy the temper or spite of the engineer. Whatever may be the law of Mississippi a railroad company is not liable for such an act under the statutes of the United Slates. TJie only sense in which the engineer was acting in the course of his employment was that he had received an order from Green which it was his duty to obey- — in other words that he, did a wilful act wholly outside the scope of his employment while his employment was going on.”
So in the instant case the unprovoked attack of Johnson upon the plaintiff occurred while they were both employed by the defendant railroad company, but the attack was in no way intended to i'm ther the business of the company and was not within hie scope of Johnson’s employment. The decision of the Supreme Court in the case of Atlantic Coast Line R. R. Company v. Southwell, 275 U.S. 64, 48 S.Ct. 25, 72 L.Ed. 157, applies the same principle to similar facts; and neither of these cases has since been expressly overruled by the Supreme Court.
The appellant argues, however, that the Davis and Southwell cases, supra, have been overruled in effect by a more liberal construction of the Act by the Supreme Court and the Courts of Appeal in such cases as Jamison v. Encarnacion, 281 U.S. 635, 50 S. Ct. 440, 74 L.Ed. 1082; Baltimore & Philadelphia Steamboat Company v. Norton, 284 U.S. 408, 52 S.Ct. 187, 76 L.Ed. 366; and Koehler v. Presque-Isle Transportation Co., 2 Cir., 141 F.2d 490.
These cases are all distinguishable from the Davis and Southwell and other like cases in that they arose among seamen employed on vessels operating upon navigable waters. In such cases the duties of the employer to its employees are different, giving rise to a broader or more liberal construction of the statutes applicable. This fact was pointed out by Mr. Justice Stone in Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 430, 431, 59 S.Ct. 262, 266, 83 L.Ed. 265, wherein he said:
“The seaman, while on his vessel, is subject to the rigorous discipline of the sea and has little opportunity to appeal to the protection from abuse of- power which the law makes readily available to the landsman. His complaints to superior officers of unsafe working conditions not infrequently provoke harsh treatment * * *. Withal, seamen are the wards of the admiralty, whose traditional policy it has been to avoid, within reasonable limits, the application of rules of the common law which would affect them harshly because of the special circumstances attending their calling. (Citations) It is for this reason that remedial legislation for the benefit and protection of seamen has been liberally construed to attain that end.”
In the Jamison case, supra, relied upon by appellant, the foreman of a crew loading a barge lying at Brooklyn in the navigable waters of the United States struck Jamison, a member of the crew, without provocation 'and to hurry him about the work, injuring him seriously. The evidence showed that the foreman was authorized by the employer to direct the crew and to keep them at work. The court held under these circumstances that the assault was committed by the foreman in the course of the discharge of his duties and in furtherance of the work of the employer’s business.
The Norton case, supra, relied upon by the plaintiff as bearing upon the proper construction of the Act, involved only a dispute in regard to the proper award of compensation to a seaman for an injured arm made by the deputy commissioner under the Longshoremen’s and Harbor Workers’ Act of 1927, 33 U.S.C.A. § 901 et seq. Under the Act involved the amount of compensation was graded according to the nature of the injury and payment was required whether the injury occurred with or without fault of the employer. The decision has no relevance to the present case.
The Koehler case, supra [2 Cir., 141 F.2d 492], is also relied upon by. the plaintiff. The action there was brought under the Jones Act, 46 U.S.C.A. § 688, by Koehler who suffered injuries while he was employed as a wheelsman on a ship engaged in traffic on the Great Lakes. The assault which resulted in the injuries complained of was made without provocation by one Todd, a fellow-seaman, on board the ship in the presence of an officer of the ship. The aggressor was shown to be a man of a vicious and belligerent nature and likely to inflict bodily harm upon other members of the crew which fact was known to the officers of the ship. The court held that the term “negligence” as used in the Jones Act includes any knowing or careless breach of any obligation which the employer owes to the seamen, and that among these obligations is the obligation of seeing to the safety of the crew. The case was distinguished from the Davis and Southwell cases, supra, on the ground that “the obligation of a shipowner to his seamen is substantially greater than that ofi an ordinary employer to his employees.” The present case can not be so distinguished from the Davis and Southwell cases. We are not dealing here with seamen but with railroad employees engaged in service on land under the Federal Employers’ Liability Act. There can be no negligence in the absence of a duty; and under the Act involved in the instant case no duty rested upon the defendant company to protect Sheaf against the assault made upon him by Johnson. The test of the master’s liability for a fellow servant’s act is the fellow servant’s purpose to further the master’s business. Otherwise the act was not committed in the discharge of his duties and was not within the scope of his employment. The complaint here stated no fact from which an inference of negligence on the part of the railroad company could be drawn.
Finally, appellant contends that the railroad company has ratified and approved the act of Johnson in attacking plaintiff by retaining him in its service notwithstanding his violation of Rule 702 of the company which provided that “Employees are prohibited from entering into altercation with any person regardless of provocation.” The application of this allegation of the complaint is not discussed in the brief, and we fail to appreciate its significance. In making the unprovoked assault upon Sheaf, Johnson did not assume to be acting for or on behalf of the company and the company is not charged with having received any benefit from the assault. Since it is charged that the plaintiff was disabled so that he could not perform his duties as conductor, Johnson’s action was a disservice to the company. We find no element of ratification in the facts' pleaded. Had the act been within the scope of Johnsou’s duties, a different inference might have been reasonable.
The judgment appealed from is affirmed.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_circuit
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Plaintiff-Appellee, v. Larry Michael GETCHEL, Defendant-Appellant.
No. 71-3048.
United States Court of Appeals, Ninth Circuit.
Sept. 25, 1972.
Roger S. Hanson (argued), of Hanson & Milman, Beverly Hills, Cal., David Unrot, Los Angeles, Cal., for defendant-appellant.
William C. Smitherman, U. S. Atty., James M. Wilkes, James E. Mueller, Asst. U. S. Attys., Tucson, Ariz., for plaintiff-appellee.
Before MOORE, MERRILL and TRASK, Circuit Judges.
The Honorable Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.
PER CURIAM:
Defendant Larry M. Getchel appeals from a judgment of conviction after a jury trial (Caleb R. Layton, D.J.) for the illegal importation of marijuana (28i/2 pounds) and hashish (3 grams) in violation of 21 U.S.C. § 176a. Indictment, Count II. Count I, charging conspiracy, was dismissed.
Appellant primarily challenges the sufficiency of the evidence to prove possession or knowledge of illegal importation of the narcotics. He claims that the evidence was entirely circumstantial and did not justify submission to the jury.
The chain of circumstantial evidence may be briefly summarized as follows:
Appellant, with another person, entered the United States from Mexico at Lukesville, Arizona, in a camper (pickup truck). Suspicious circumstances caused customs officials to follow the truck. Later that night the same truck was observed on a road closely paralleling a Mexican highway. The lights were turned off and when customs officials attempted to stop the vehicle it sped up, forcing an Agent off the road. Something fell or was thrown from the back of the camper. It proved to be a large sack and smaller boxes containing marijuana and hashish. The camper was discovered abandoned off the highway in the desert. Tennis shoe footprints led to Ajo, Arizona, where in the train yard were found the same tennis shoe tracks and a night bag which had been run over by a train. The Agent pursued the daily copper train out of Ajo, found the appellant on it, and arrested him. His shoes matched the footprints found around the abandoned camper. In his jacket pocket was marijuana debris and in his shirt the keys to the camper.
From the witness stand appellant gave a version of his activities quite at variance with the Government’s proof. Appraisal of the many inconsistencies in his testimony was for the jury. Attempted flight was also a factor to which the jury was entitled to give consideration. (Shorter v. United States, 412 F.2d 428 (9th Cir. 1969); Rossetti v. United States, 315 F.2d 86 (9th Cir. 1963).)
As to illegal importation, the Government identified the marijuana as having originated in South America. Appellant’s effort to disassociate himself from marijuana and the camper failed. The trial court’s charges correctly stated the law. No exceptions were taken.
The judgment of conviction is 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:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
BIG LAKE OIL CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 6449.
Circuit Court of Appeals, Third Circuit.
Feb. 18, 1938.
Rehearing Denied April 19, 1938.
Edgar J. Goodrich, of Washington, D. C., and S. Leo Ruslander, of Pittsburgh, Pa., for petitioner.
James W. Morris, Asst. Atty. Gen., and Sewall Key and L. W. Post, Sp. Assts. to Atty. Gen., for respondent.
Before BUFFINGTON, THOMPSON, and BIGGS, Circuit Judges.
THOMPSON, Circuit Judge.
This is a petition for review of a decision of the Board of Tax Appeals determining a deficiency in the petitioner’s income tax for 1927. The issue is whether the amount of $598,571.01, the agreed fair market value of certain shares of common stock received by the petitioner, should be included in the petitioner’s taxable income for 1927. The determination of this issue is dependent upon whether the shares were received by the petitioner in 1927 or in some prior year.
The shares of stock were acquired by the petitioner under the following circumstances: The petitioner and others, hereinafter referred to as the producers, were engaged in producing and selling petroleum oil from wells in Reagan county, Texas. In prder to procure access to pipe lines by which to transport the oil to market, the petitioner and the producers, in a contract dated October 22, 1924, agreed to sell to Marland Oil Company, hereinafter referred to as Marland, or its nominee, all the oil they should produce up to an agreed maximum amount. Marland agreed to organize Reagan County Purchasing Company, Inc., hereinafter referred to as Reagan, and to provide the necessary working capital for Reagan by the purchase of its preferred stock at par. This stock was to be retired out of the profits of the company. Marland was to receive 51 per cent, of the common stock. The petitioner and the producers were to share the remaining 49 per cent, temporary certificates for which were to be issued in the name of the petitioner for one-half and in the names of the producers jointly for the other half. The final several ownership of the 49 per cent, was to be determined in accordance with the terms of a separate agreement between the petitioner and the producers. This agreement was evidenced by a letter dated October 19, 1924, in which it was agreed that the division be made among the petitioner and the producers as soon after December 1, 1926, as convenient, based proportionately upon the amount of oil which each should deliver towards the daily quota of 20,000 barrels during a test period from December, 1925, to December, 1926. In a contract dated November 24, 1924, the petitioner and the producers agreed to sell to Reagan, and Reagan agreed to purchase, a maximum of 20,000 barrels of oil daily. Reagan likewise agreed to provide the necessary pipe lines. On January 2, 1926, an escrow agreement was executed which provided that the temporary certificates issued in the names of the petitioner and the producers be deposited with the escrow agent, and that the shares of stock represented by the certificates could not be sold, assigned, or transferred (except to Marland, the petitioner, or to the producers) so long as any of the preferred stock had not been retired. The certificates were deposited with the escrow agent on March 12, 1926.
During the test period the petitioner and •the producers each delivered more than 10,--000 barrels of oil daily; thus entitling the petitioner to one-half of the 49 per cent, of common stock and the producers to one-half. The- last remaining preferred stock was retired and the escrow was terminated in January, 1927. The petitioner received a certificate for 2,450 shares, free of restrictions in March, 1927; the shares having an agreed fair market value of $598,-571.01. The petitioner did not report any income from the receipt of these shares for 1927 or for any prior year. The Commissioner determined that the petitioner received the shares in 1927.
Section 213 of the Revenue Act of 1926, c. 27, 44 Stat. 9, 23, requires that all items of gross income shall be included for the taxable year in which received by the taxpayer. Stoner v. Commissioner of Internal Revenue, 3 Cir., 79 F.2d 75, certiorari denied Helvering v. Stoner, 296 U.S. 650, 56 S.Ct. 309, 80 L.Ed. 462; Taylor v. Commissioner of Internal Revenue, 7 Cir., 89 F.2d 465; United States v. Safety Car Heating Co., 297 U.S. 88, 95, 56 S.Ct. 353, 356, 80 L.Ed. 500. Until 1927, when the escrow was terminated, the petitioner not only lacked either actual possession or control, but the number of shares to which it would ultimately be entitled was dependent upon future tests and the shares themselves were burdened with restrictions until and if Reagan earned sufficient profits to retire the preferred shares. It is our opinion that the petitioner realized no income pending determination of the true and ultimate ownership and that this did not occur until 1927.
The decision of the Board of Tax Appeals is affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_trialpro
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in 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".
ROCKWELL INTERNATIONAL CORP., Plaintiff-Appellant, v. REGIONAL EMERGENCY MEDICAL SERVICES OF NORTHWEST OHIO, INC., Defendant-Appellee.
No. 80-3604.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 17, 1981.
Decided Sept. 17, 1982.
Richard S. Baker, Toledo, Ohio, for plaintiff-appellant.
Arthur F. James, Rosen, Shinaberry, James & Weiher, Toledo, Ohio, for defendant-appellee.
Before JONES, Circuit Judge, WEICK, Senior Circuit Judge, and SILER, District Judge.
The Honorable Eugene E. Siler, Jr., United States District Judge for the Eastern and Western Districts of Kentucky, sitting by designation.
SILER, District Judge.
Collins group, a subdivision of Rockwell International Corp. (hereinafter “Collins”), has appealed from a directed verdict granted in favor of the defendant-appellee Regional Medical Services of Northwest Ohio, Inc. (hereinafter “REMSNO”). The issue to be decided in this case is whether the district court erred in granting a directed verdict. For the reasons set forth below, we reverse and remand for a new trial.
The facts giving rise to this controversy began on April 7, 1975, when Collins contracted with the Medical College of Ohio at Toledo (hereinafter “MCO”) to furnish and install an Emergency Medical Communication System for an area of Northwest Ohio. On July 15, 1975, MCO assigned the rights and delegated the duties under the contract to REMSNO, with the knowledge and approval of Collins. Prior to the original completion date (October, 1975), several problems developed. Building permits, authorizations and Federal Commission licenses were not obtained by either MCO or REM-SNO, although MCO was obligated under the contract to obtain all “necessary licenses and permits required under the Federal Communications Commission and the Federal Aviation Administration.”
It became apparent that some of the equipment installed by Collins (according to specifications prepared and furnished by MCO) would be insufficient to meet the needs of the emergency system. However, it does not appear that the items installed by Collins were defective. Approximately six months after the contracted completion date Collins informed REMSNO that it would be impossible to proceed further under the original contract due to the aforementioned problems and resulting delays. The system was eventually completed by Motorola under another contract. On August 23,1977, Collins filed suit against MCO and REMSNO for breach of contract. Collins alleged it was due $69,442.00 under a ten per cent withholding clause and $79,-852.00 for additional work performed, for a total of $149,294.00. The district court concluded the Ohio Court of Claims had jurisdiction over the suit against MCO and directed a verdict accordingly. After presentation of the evidence, the court also directed a verdict in favor of REMSNO from which Collins has appealed.
On a motion for a directed verdict, the court should consider the evidence in the light most favorable to the party against whom the motion was made, and give it the advantage of every fair and reasonable inference that the evidence can justify. Continental Ore v. Union Carbide & Carbon Co., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); Fortner Enterprises, Inc. v. United States Steel Corp., 452 F.2d 1095 (6th Cir. 1971), cert. denied, 406 U.S. 919, 92 S.Ct. 1773, 32 L.Ed.2d 119 (1972). A directed verdict is appropriate if there is a complete absence of pleading or proof on an issue or issues material to the cause of action or where there are no controverted issues of fact upon which reasonable men could differ. Edwards v. United States, 140 F.2d 526 (6th Cir. 1944). In this case, however, there was a factual issue presented to the court below. Therefore, the directed verdict was erroneously granted.
The issue which should have been presented to the jury was the question of who was responsible for the delays which led to this action. Collins argued that it was prevented from fully performing its obligations by the delays which were the fault of MCO and REMSNO. REMSNO argued that it was not in a position to become responsible under the contract until it received federal funding for the project in December of 1975. REMSNO states that the July, 1975, assignment from MCO to REMSNO was an “assignment in name only” or a “paper assignment.” While REMSNO might not have been to blame for the delays, it apparently became legally responsible as of the date of assignment from MCO. In reference to the delays which occurred, the district court stated, “There is just no evidence that would show that that was the fault of the plaintiff [Collins] any more than it was the fault of the defendant.”
As this was a case filed under the diversity jurisdiction of the court, 28 U.S.C. § 1332, state law controls. Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Moreover, as the contract provided that Ohio law governed, it is to be applied here.
M Where one party to a contract hinders or prevents the completion of a contract, this constitutes a breach of the contract. See Rohde v. Massachusetts Mutual Life Ins. Co., 682 F.2d 667, 670 (6th Cir. 1980) (applying Ohio law); Gridiron Steel Co. v. Jones & Laughlin Steel Corp., 361 F.2d 791 (6th Cir. 1966) (applying Ohio law); Suter v. The Farmers Fertilizer Co., 100 Ohio St. 403, 126 N.E. 304 (1919). As REM-SNO stood in the shoes of MCO as its successor to the contract, if MCO prevented Collins from installing its equipment, then it cannot repudiate the contract by proclaiming that Collins did not complete the task on time. In light of the fact that both sides had presented evidence to indicate who was at fault, the issue was clearly a fact to be resolved by the jury.
The contract provided that any changes requiring additional work must be made in writing prior to such work commencing. Collins provided additional services; however, the writing required was not met for certain additional work. It is the position of Collins that REMSNO requested, agreed to and had knowledge of the additional work that was being performed by Collins and such knowledge constituted a waiver of the writing requirement. Expanded Metal Fire-Proofing Co. v. Noel Construction, 87 Ohio St. 428, 101 N.E. 348 (1913).
Under Ohio law the construction to be given a written contract is a matter of law to be determined by the court. Alexander v. Buckeye Pipeline Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978). Obviously, there could be an oral modification of such a contractual provision. See United Steel Co. v. Casey, 262 F. 889 (6th Cir. 1920) (applying Ohio law). Here, however, there was no evidence of waiver or variance from paragraph ten of the contract. Once, when a change was authorized, on October 30, 1975, it was accomplished in writing and payment was made by REMSNO. Thus, that charge is not an issue in this litigation.
On all other occasions when Collins alleges it incurred other expenses, it did not demonstrate in the proof that REMSNO acquiesced or approved the additional changes. There were communications from Collins to REMSNO about the charges, but REMSNO never did agree to the changes. Therefore, there could be no waiver, and the district court properly decided this in favor of REMSNO.
For the reasons set forth above, the holding of the district court is REVERSED and the action is REMANDED with instructions that the court below should grant a new trial consistent with this opinion.
. This was actually a novation, which is a substituted contract which includes as a party one who was not a party to the original contract. Under this substitution, or novation, the breach of the new duty on the part of REMSNO does not give rise to a right of action on the old duty. See Restatement (Second) of Contracts § 280 (1979); 6 Corbin, Contracts § 1297 (1962).
. That provision provides:
M.C.O. may from time to time, by written instructions or drawings, make changes in the specifications, require additional work or direct omission of work previously ordered, and the provisions of the contract shall apply to all such changes, modifications or additions with the same effect as though embodied in the proposal. No change shall be deemed to be made pursuant to this clause unless such change is ordered in writing. If any change causes an increase or decrease in the cost or of the time required for the performance of any part of the work, whether changed or not changed by such order, an equitable adjustment shall be made in the contract price and schedule. Prior to commencement of any extra work or changed work. M.C.O. and COLLINS shall negotiate the necessary adjustment to the contract price and delivery schedule.
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:
|
songer_fedlaw
|
B
|
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.
Shirley Shueh-Lan CHEN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 19509.
United States Court of Appeals Eighth Circuit.
Nov. 5, 1969.
Jan D. Stuurmans, Dorsey, Marquart, Windhorst, West & Halladay, Minneapolis, Minn., for petitioner; briefs and motion in opposition to motion to dismiss was filed by Bernard P. Becker, Smith & Munro, Legal Aid Society of Minneapolis, Inc., Minneapolis, Minn.
Paul C. Summitt, Atty., Dept, of Justice, Criminal Division, Administrative Regulations Section, Washington, D. C., for respondent; Will Wilson, Asst. Atty. Gen., Jerome M. Feit, Atty., Dept, of Justice, Washington, D. C., and Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., on the brief. Motion to dismiss was filed by Daniel Bartlett, Jr., U. S. Atty.
Before VAN OOSTERHOUT, Chief Judge and LAY and HEANEY, Circuit Judges.
PER CURIAM.
The issue presented by the Government’s motion to dismiss this appeal is whether 8 U.S.C.A. § 1105a(c) divests this court of jurisdiction to review a deportation order, administratively final, in a situation where the petitioner has voluntarily departed from this country subsequent to the filing of a timely petition for review.
The petitioner, Miss Chen, a citizen of Taiwan, Republic of China, was admitted to the United States on September 17, 1967, on nonimmigrant-student visa expiring on September 17, 1968. An order for her deportation, under 8 U.S. C.A. § 1251(a) on the ground that she was excludable at the time of entry under 8 U.S.C.A. § 1182(a) (3), as an alien who had one or more attacks of insanity, became administratively final when the Board of Immigration Appeals dismissed her appeal on August 20, 1968.
Petition for review of the deportation order was filed on October 31, 1968. On November 1, 1968, deportation was stayed pursuant to 8 U.S.C.A. § 1105a (a) (3) pending determination of the petition for review. Upon oral argument on September 11,. 1969, counsel for petitioner conceded that petitioner had voluntarily left the United States on or about May 22, 1969, and that she has remained outside of the United States up to the present time.
Federal courts below the Supreme Court level have only such jurisdiction as is given them by Congress. Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 376, 60 S.Ct. 317, 84 L.Ed. 329; Ex parte McCardle, 7 Wall. 506, 512-514, 74 U.S. 506, 512-514, 19 L.Ed. 264; Sheldon v. Sill, 8 How. 440, 448-449, 49 U.S. 440, 448-449, 12 L.Ed. 1147; Wallach v. City of Pagedale, 8 Cir., 376 F.2d 671, 675. The Power of Congress to confer jurisdiction carries with it the power to remove jurisdiction.
Petitioner contends that once jurisdiction of a United States court attaches, a subsequent change in condition of the parties will not oust jurisdiction. In support Morgan’s Heirs v. Morgan, 2 Wheat. 290, 297, 15 U.S. 290, 297, 4 L. Ed. 242 (change of residence in diversity case) and Kanouse v. Martin, 15 How. 198, 56 U.S. 198,14 L.Ed. 660 (change in jurisdictional amount) and similar cases are cited. Such cases do not turn on the lack of power of Congress to take away acquired jurisdiction but upon a' failure of Congress to make the changed standards effective as to pending cases.
The dispositive issue on the motion before us is a determination on whether Congress has expressed an intention in the controlling statute, 8 U.S.C.A. § 1105a (c), to take away review jurisdiction in deportation cases where the departure from the country occurred after a deportation review proceedings had been commenced. The answer must be found in the interpretation of § 1105a(c), which in pertinent part reads:
“An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order. * * * ”
The statute in our view is clear and unambiguous and plainly states that an order of deportation shall not be reviewed if the deportee has departed from the United States.
Eight U.S.C.A. § 1101(g) provides:
“For the purposes of this chapter any alien ordered deported (whether before or after the enactment of this chapter) who has left the United States, shall be considered to have been deported in pursuance of law, * * * ”
In Mrvica v. Esperdy, 376 U.S. 560, 565 n. 5, 84 S.Ct. 833, 836, 11 L.Ed.2d 911, the Court states:
“Indeed, discussion of the manner of the petitioner’s departure seems beside the point in view of his concession that his departure executed the warrant for his deportation. (If by his departure he managed to execute the warrant for his deportation but nevertheless remain undeported, he was able to improve his status by leaving the country. The suggestion is untenable.)”
Moreover, any permission granted petitioner to reside in this country has expired by the terms of the visa granted. Her voluntary departure has eliminated any possibility or need for deporting her for staying beyond the period permitted by her visa.
Regardless of what the proper decision on the merits of the petition for review might be, petitioner as an alien cannot reenter the United States without complying with the entry provisions of the immigration laws.
The Government’s motion to dismiss the petition for review is granted; the petition is dismissed for want of jurisdiction.
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_adminrev
|
N
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
Thurman S. ALPHIN, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, Respondent, Administrator of the Federal Aviation Administration, Intervenor.
No. 86-1662.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 20, 1987.
Decided Feb. 26, 1988.
Paul Victor Jorgensen, Washington, D.C., for petitioner.
Allan H. Horowitz, with whom Marguerite L. Price, Washington, D.C., was on the brief for intervenor. William H. Gonzalez, Washington, D.C., also entered an appearance for intervenor, F.A.A.
Before WALD, Chief Judge, SENTELLE, Circuit Judge, and GIBSON , Senior Circuit Judge.
Of the United States Court of Appeals for the Eighth Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d).
Opinion for the Court filed by Senior Circuit Judge FLOYD R. GIBSON.
FLOYD R. GIBSON, Senior Circuit Judge:
Thurman S. Alphin appeals from an order of the National Transportation Safety Board (NTSB or Board) denying his application for attorney’s fees and costs under the Equal Access to Justice Act, 5 U.S.C. § 504 (EAJA). The sole issue on appeal is whether the Administrator of the Federal Aviation Administration (FAA) was substantially justified in initiating and continuing proceedings against Alphin resulting in the suspension of his Inspector’s Authorization Certificate. The NTSB found that the Administrator was substantially justified and denied Alphin’s application. We reverse and remand with directions to reconsider the application for a possible award of partial fees and costs.
I. Background
In the fall of 1979, Tri-State Airways, Inc., a flying school located in New Jersey, brought two Cessna 150 airplanes to Al-phin Aircraft for engine overhauls. At the conclusion of the overhauls the engines were signed off — approved as airworthy— by Thurman Alphin and returned to TriState.
Shortly thereafter, Tri-State began experiencing problems with the airplanes such as engine vibration and roughness and loss of power. The airplanes were returned to Alphin Aircraft several times, but the problems persisted. Tri-State contacted an FAA Inspector, Raymond Whitehead, about the problems and he tagged the engines for teardown.
On March 19, 1980 the engines were disassembled at Penn Yan Aero Service, an FAA certified engine overhaul facility. The work was performed by a Penn Yan employee in the presence of FAA Inspector Albert Lengyel. Lengyel prepared a written report listing the mechanical problems found during the teardowns.
With regard to engine serial # 252402 Lengyel reported: 1) low compression in cylinder number one; 2) out of round cam shaft lobe measurements; 3) exhaust valve guide measurements “out of limits”; 4) an upside-down valve spring; 5) excessive exhaust valve clearance on cylinder number two; 6) all rocker arm bushings “out of limits”; 7) worn clutch parts; 8) failure to comply with several service bulletins; and 9) a cracked crankshaft.
With regard to engine serial #253829-A-48 Lengyel reported: 1) number one cylinder was steel but pistons and rings were designed for chrome cylinder; 2) four valve guide measurements “out of limits”; 3) excessive valve clearances on three valves; 4) all but two rocker arm bushings “out of limits”; 5) worn clutch parts; 6) excessive crankshaft to camshaft gear tooth clearance; and 7) carburetor not overhauled.
The report was forwarded to Whitehead who recommended that Alphin’s Inspector’s Authorization Certificate be suspended. In August 1980 the FAA issued an order suspending Alphin’s certificate for sixty days on the grounds that he had performed two substandard engine overhauls and had operated a certified repair station without a Repair Station Certificate. The order was later amended to charge Alphin with signing off the substandard overhauls, rather than performing them himself.
Alphin appealed the suspension to the NTSB and a hearing was held before an administrative law judge. The AU found that Alphin did not need a Repair Station Certificate to sign off the engines because he held an Inspector’s Authorization Certificate. The AU also found, however, that Alphin had improperly signed off the two engines and ordered a forty-five day suspension. Alphin’s appeal to the NTSB was denied.
While the administrative proceedings were pending, Tri-State filed a lawsuit against Alphin Aircraft in New Jersey state court. Lengyel testified as an expert on behalf of Tri-State, but his testimony was inconsistent with his testimony before the AU. Based on Lengyel’s new testimony, the NTSB granted Alphin a rehearing before an AU. Upon rehearing the AU once again found that the overhauls were substandard.
On appeal the NTSB reversed. The Board found that the FAA had failed to prove that the crack in the crankshaft in #252402 existed at the time Alphin Aircraft overhauled the engine. The crack could have developed during the eighty-three hours the aircraft was operated after Alphin’s overhaul. Also, Alphin could not be held responsible for the out-of-round camshaft because the flaw was not one which should have been detected during the overhaul. The test which would have disclosed the flaw is not mandated and the overhaul manual does not provide cam lobe measurements. Similarly, the Board found that compliance with the service bulletins was not mandatory and the overhaul procedure does not require servicing the clutch assemblies. Further, several of the alleged deficiencies — a forging lap on the connecting rod cap, an upside down valve spring, and a steel cylinder — would not affect engine performance.
The Board also considered the allegedly excessive valve train measurements and concluded that the FAA had failed to prove that any problems existed. The notations that certain measurements were “out of limits” did not establish a basis from which the Board could conclude that the parts were excessively worn. Since the mechanic who took the measurements was not present to testify, it could not be determined whether the measurements were taken accurately. Also, the go-no-go gauges which were used were machined to new rather than overhauled engine specifications. Therefore, Lengyel’s report, at best, indicated that the engines no longer had the measurements found in new engines — a fact irrelevant to whether the overhauls were correctly performed.
With regard to the measurements which were specifically recorded in Lengyel’s report, the Board found that the FAA had failed to prove that the excess clearances did not result from the hours of service each airplane accumulated after Alphin’s overhaul and before Lengyel’s inspection.
Alphin’s timely application under the EAJA for attorney’s fees and costs in the amount of $135,525 was denied by the AU and on appeal by the NTSB. Alphin then appealed to this court.
II. Discussion
The EAJA provides, in relevant part:
(a)(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust. Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.
(b)(1) For the purposes of this section—
(E) “position of the agency” means, in addition to the position taken by the agency in the adversary adjudication, the action or failure to act by the agency upon which the adversary adjudication is based; except that fees and other expenses may not be awarded to a party for any portion of the adversary adjudication in which the party has unreasonably protracted the proceedings.
5 U.S.C. § 504 (Supp. Ill 1985).
We are troubled by the language used by the NTSB when it denied Alphin’s application for fees and costs. Having read and reread the Board’s order many times, we are unable to reach any conclusion other than that the NTSB incorrectly evaluated whether the FAA was substantially justified. In several places the Board indicated that the FAA was substantially justified because the evidence against Alphin, unrebutted and standing alone, was sufficient to establish a violation. For example, when discussing the FAA’s burden on the EAJA application the Board stated that “excluding consideration of a respondent’s rebuttal case, the Administrator must produce enough substantial, probative, and reliable evidence as is necessary to permit a finding that the violations charged in fact occurred.” Application of Thurman S. Alphin, N.T.S.B. Order EA-2342 at 3 (1986) (emphasis added). The Board further stated that its finding that Alphin had not violated maintenance performance standards “did not represent a judgment that the Administrator had not produced enough evidence to support a charge under the regulation, only that it was not sufficient to support the charge in light of all of the evidence adduced by the parties in this case.” Id. at 5.
Finally, the Board stated that the FAA’s reliance on Lengyel’s report was not unreasonable because opinion testimony of FAA inspectors is usually sufficient to establish violations. “[Presumably [it] would have been considered sufficient here had either the inspector taken these measuements [sic] himself or required that the mechanic who did take them use tools capable of indicating not just whether a limit or tolerance has been exceeded but also by how much.” Id. at 6.
These passages and the Board’s treatment of the evidence indicate that the Board failed to view the “record as a whole” when it determined that the FAA was substantially justified. The Board concluded that because the FAA had presented enough evidence to establish a violation, it was substantially justified in initiating and continuing the proceedings against Alphin. This is not the standard required by the EAJA, however. The Act expressly requires an examination into “the administrative record, as a whole.” Any lesser examination — such as viewing the government’s case in a vacuum, “excluding consideration of a respondent’s rebuttal case,” would defeat the purposes of the EAJA.
For example, if an agency were to bring an adversarial action against a private individual which was slightly stronger than frivolous, the agency would prevail if the respondent presented no defense. However, if the respondent successfully defended himself with overwhelming evidence, we would not deny his EAJA application solely because the agency would have prevailed had he not presented a defense. To the contrary, even if the agency would have prevailed in an uncontested proceeding, fees should be awarded if, in light of all the evidence known to the agency, its case was not substantially justified.
We also believe the NTSB erred in failing to consider whether the FAA was substantially justified in basing its order of suspension in part on allegations which the Board itself found to be without merit. For example, in its decision reversing the order of suspension, the Board disposed of several alleged deficiencies — such as noncompliance with service bulletins, an upside down valve spring, and a chrome cylinder— in a footnote. Yet, in its decision on the EAJA application the Board did not discuss these allegations. Although we agree with the Board that the cracked crankshaft alone validated the FAA’s decision to proceed against Alphin, we can not condone the shotgun approach used by the FAA. Simply because the cracked crankshaft, if proved, could have supported the suspension, the FAA is not entitled to tack on other meritless allegations. Each allegation had to be disproved by Alphin, because absent official notice that it was meritless, the allegation would not disprove itself.
We believe the NTSB should have examined Alphin’s application to determine if a partial award was appropriate, with respect to each allegation, Cinciarelli v. Reagan, 729 F.2d 801, 804-05 (D.C.Cir.1984); and in light of the knowledge known by the FAA during the various stages of the proceedings. Martin v. Lauer, 740 F.2d 36, 44 (D.C.Cir.1984).
In Cinciarelli this court stated that “[pjartial awards are contemplated within EAJA’s statutory scheme; if some but not all of the government’s defenses are substantially justified the prevailing party should be compensated for combatting those that are not.” 729 F.2d at 804-05. Similarly, in Martin we stated that:
We are convinced that many of the considerations expounded in Spencer [v. NLRB, 712 F.2d 539 (D.C.Cir.1983) ] favor separate determinations as to the substantial justification for the defendants’ position at each level. By judging the substantiality of the government’s position in the particular proceeding at issue, courts will encourage the government to determine whether to appeal based on the facts and law pertinent to that appeal. Further, this approach will induce the government to ‘evaluate carefully each of the various claims’ it might make on appeal and ‘assert only those that are substantially justified. The net result would be more sensitive and effectual promotion of the objectives of the EAJA.’
740 F.2d at 44 (footnotes omitted) (quoting Spencer v. NLRB, 712 F.2d at 557). Because the NTSB failed to evaluate the FAA’s position based on the record as a whole and because each allegation and each step of the proceedings was not separately evaluated we remand the case back to the NTSB for reconsideration.
On remand the Board should determine if the FAA “acted slightly more than reasonably,” Federal Election Com’n v. Rose, 806 F.2d 1081, 1087 (D.C.Cir.1986), when it initially sought to suspend Alphin’s Inspector’s Authorization Certificate and subsequently when it persisted despite knowing that Lengyel’s report was based largely on the opinion of an unknown mechanic who used improper gauges. Clearly, the FAA had an obligation to proceed against Alphin when it learned of the cracked crankshaft and this flaw alone validated the FAA’s decision to commence the proceeding, but as stated previously, the EAJA inquiry should not end there.
Chronology plays an important role in this case. As the case proceeded and the reliability of Lengyel’s report became questionable, it becomes less clear whether the FAA was substantially justified in basing its case on that report. The FAA may have been obligated to change its position within a reasonable time after learning that problems existed in the report. However, we are reluctant, on the record before us, to set forth an exact date after which the FAA no longer was substantially justified in pressing various theories, although a date may exist and should be pursued by the Board on remand. Further, what constitutes a reasonable time should initially be determined by the Board. We realize that this inquiry will be complicated by the fact that the AU and the NTSB heard the merits on more than one occasion, but the EAJA demands that each allegation made by the FAA be evaluated at each step of the proceedings when new or additional evidence indicated that its original allegations lacked substance or were in error. What was a substantially justified position prior to the initial hearing before the AU may not have been such years later when the NTSB finally reversed the order of suspension.
III. Conclusion
Because we believe the NTSB erred in considering Alphin’s EAJA application, we remand this case back to the Board for a more in depth evaluation of the FAA’s position at each step of the proceedings, to determine whether a partial award is appropriate, and the amount thereof.
. In its order granting Alphin’s petition for rehearing the NTSB stated, in part:
The asserted deficiencies in the powerplants at issue here involved internal engine components, chiefly in the valve train, which, according to the FAA inspector, exhibited wear in excess of maximum service limits. To reach such a determination, precise measurements, involving hundredths or even thousandths of an inch, must be made and compared with the specifications listed for the component in the overhaul manual for the engine. Although the FAA inspector did not himself make any such measurements on the two engines, he recorded the results of measurements taken by another mechanic during the disassembly process. In response to respondent’s efforts, at the hearing, to verify the basis for inspector’s determination that specific parts were out of tolerance or exceeded specifications, the inspector repeatedly stated that he and the mechanic had consulted the overhaul manual. Respondent’s petition asserts that the inspector’s testimony in this connection is contradicted by his subsequent testimony, in a state court trial, wherein the inspector stated that the manual was not available during the teardowns and that he did not know whether the mechanic had referred to the manual....
The inspector’s testimony in the state action raises a genuine issue as to the basis for, and the reliability of, his judgment that various deficiencies existed in the two engines. We are persuaded, in such circumstances, that a rehearing is warranted by the showing made in respondent’s petition.
(Footnotes omitted).
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
|
songer_usc2sect
|
1481
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 8. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America ex rel. Herman Frederick MARKS, Relator-Appellant-Appellee, v. P. A. ESPERDY, as District Director of the Immigration and Naturalization Service, New York District, United States Department of Justice, Respondent-Appellee-Appellant.
No. 170, Docket 27557.
United States Court of Appeals Second Circuit.
Argued Dec. 11, 1962.
Decided April 9, 1963.
Murray A. Gordon, New York City, for relator-appellant-appellee.
Vincent L. Broderick, U. S. Atty., S. D. N. Y. (Roy Babitt, Spec. Asst. U. S. Atty., of counsel), for respondent-appel-lee-appellant.
Before WATERMAN, SMITH and HAYS, Circuit Judges.
WATERMAN, Circuit Judge.
Herman Frederick Marks was born in Milwaukee, Wisconsin, on August 1, 1921. In 1958 he went to Cuba and there joined Fidel Castro’s revolutionary forces fighting in the Sierra Maestra Mountains to overthrow the government of Fulgencio Batista. After the revolution was brought to a successful conclusion in January 1959, Marks continued to serve as a captain in the Cuban Rebel Army. He was placed in command of some 7,000 to 8,000 men charged with the security of La Cabana, a military prison and fortress in Havana. There he presided over the execution of numerous prisoners condemned to death by military tribunals. Later he was assigned to give instructions on the use of weapons at a military police school and at Principe Prison, where he again commanded a unit of security guards.
In May 1960, Marks, having lost favor with the Castro regime, left Cuba and in July of that year re-entered the United States.
In January 1961, Marks was arrested by officers of the Immigration and Naturalization Service. The Attorney General commenced deportation proceedings against him charging that, pursuant to 8 U.S.C. § 1481(a) (3), he had lost his American citizenship by serving in the armed forces of a foreign country without authorization of the Secretary of State and the Secretary of Defense; and, that being an alien, he was a deport-able one, 8 U.S.C. § 1251(a) (1), as he had been convicted in 1951 of a crime involving moral turpitude, 8 U.S.C. § 1182(a) (9), and as he had entered the United States, upon his return from Cuba, without appropriate alien documents. 8 U.S.C. § 1182(a) (20).
After a hearing before a Special Inquiry Officer of the Immigration and Naturalization Service, Marks was ordered deported on the grounds set forth above. The Board of Immigration Appeals sustained the order of deportation.
Marks thereupon petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus, challenging (1) his alleged loss of citizenship, and thus the jurisdiction of the Attorney General in the prior administrative deportation proceedings; (2) his deportability under 8 U.S.C. §§ 1251(a) (1), 1182(a) (9) and 1182(a) (20), even should he be determined to be an alien; and (3) the lawfulness of his detention, should he be declared to be legally deportable, as he would then be stateless and thus not actually deportable to Cuba or to any other country.
“(a) From and after the effective date of this chapter a person who is a national of the United States whether by birth or nationalization, shall lose his nationality by—
*****
(3) Entering, or serving in, the armed forces of a foreign state unless, prior to such entry or service, such entry or service is specifically authorized in writing by the Secretary of State and the Secretary of Defense * *
After a hearing upon the issues so raised, the district judge ruled that Marks had lost his American citizenship by virtue of serving in the armed forces of Cuba after the successful conclusion of the Castro revolution. Marks appeals from that determination, claim-i ing, as he did below, that the Rebel Army did not constitute the “armed forces of ,a foreign state”, within the meaning of 18 U.S.C. § 1481(a) (3), that his service in the Rebel Army during 1959 and 1960 was involuntary, and that § 1481(a) (3) as here applied is unconstitutional in that it imposes a cruel and inhuman punishment in violation of the Eighth Amendment. Although we find great force in the constitutional arguments presented by relator’s counsel, we are constrained by the superior authority of Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603 (1948), to affirm the determination of alienage on the opinion of Judge Cashin, the district judge below, 203 F.Supp. 389 (1962).
Despite his determination adverse to the relator on the issue of alien-age, Judge Cashin granted the writ of habeas corpus relator sought, for he held that Marks was not deportable under either 8 U.S.C. § 1182(a) (9) or 8 U.S.C. § 1182(a) (20), the provisions relied upon by the Attorney General in the prior deportation proceedings. We hold that the determination of the district court (was erroneous in this respect and that ! the order of deportation was valid.
Section 241 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1251, provides, in material part, that
“(a) Any alien in the United ■ States * * * shall, upon the order of the Attorney General, be deported who — -
“(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry;”
Section 212(a) (20) of the same Act, 8 U.S.C. § 1182(a) (20), provides for the exclusion from the United States of any alien immigrant
“ * * * who at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter * *
It is conceded that Marks possessed none of the documents required of entering alien immigrants at the time of his return to the United States from Cuba in July 1960. Though he had been served with a certificate of loss of American citizenship, he effected entry as a returning native-born citizen who did not need the documents required of alien immigrants. The district judge ruled, however, that §§ 1251(a) (1) and 1182 (a) (20) were inapplicable to the novel facts of this case, for he held that inasmuch as, prior to Marks’ reentry in 1960, there had been no adjudication of his alienage in any judicial proceeding, no competent determination of Marks’ alienage had been made at the time of his entry.
It is clear that when an alleged alien claims United States citizenship and supports his claim by substantial evidence, he is entitled by the due process clause of the Fifth Amendment to have his American citizenship vel non determined by a judicial tribunal. Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938 (1922); Perez v. Brownell, supra; Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082 (1939). It is equally clear that Congress sought by the enactment of Section 356 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1488, to have loss of nationality occur immediately upon the commission of expatriating acts:
“The loss of nationality under this Part shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this Part.”
See Hearings Before the Committee on Immigration and Naturalization on H.R. 6127, House of Representatives, 76th Cong. 1st Sess. (1940) at 504; Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). To accommodate the intent of Congress, therefore, Judge Cashin’s determination of alienage must be interpreted to relate to the time of Marks’ service in Cuba’s Armed Forces unless such an application of § 356 is constitutionally prohibited.
We find no such prohibition. Were deportation under 8 U.S.C. §§ 1251(a) (1) and 1182(a) (20) a punishment for entry into the country in knowing violation of alien documentation requirements, the imposition of such a penalty based upon a post-entry determination of alienage would surely involve fundamental unfairness. Deportation under these statutory provisions is not a penalty for wrongdoing, however, but is rather the delayed exercise of the congressional power to exclude aliens from entry into the United States.
If Marks lost his American citizenship by virtue of service in the Cuban Armed Forces, as we are constrained to hold that he did, he became an alien in 1959 at the time the expatriating acts were committed, not at the time his alienage was judicially determined. Marks thereafter entered the United States without the documentation required of alien immigrants and is, on that ground, subject to deportation under 8 U.S.C. §§ 1251 and 1182(a) (20).
The judgment of the district court is reversed, and the cause is remanded with instructions that the writ of habeas corpus be dismissed.
. Section 349 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1481, provides in material part:
. Having ruled that the order of deportation was invalid, Judge Cashin did not reach the relator’s third contention, that his detention was unlawful on the ground that no country would accept him as a stateless deportee and therefore that he was not, in fact, deportable. Marks, who is now at liberty on a bond of $5,000, does not raise tbe question of his actual deportability upon these cross-appeals. Our disposition of these appeals is, of course, without prejudice to a renewal of that contention upon a new petition for a writ of habeas corpus, should the Attorney General again take the relator into custody.
. Because of our determination that the order of deportation was valid under § 1182(a) (20), we do not reach the question whether Marks was also deportable under 8 U.S.C. § 1182(a) (9), as the Attorney General contends, by virtue of a prior criminal conviction,
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 8? Answer with a number.
Answer:
|
sc_adminaction_is
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
NATIONAL LABOR RELATIONS BOARD v. DISTRICT 50, UNITED MINE WORKERS OF AMERICA, et al.
No. 64.
Argued January 6, 1958.
Decided February 3, 1958.
Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Jerome D. Fenton, Stephen Leonard and Alice Andrews.
Crampton Harris argued the cause for District 50, United Mine Workers of America, respondent. With him on the brief were Yelverton Cowherd and Alfred D. Treherne.
Mr. Justice Brennan
delivered the opinion of the Court.
The National Labor Relations Board found that Bowman Transportation, Inc., committed unfair labor practices by assisting District 50, United Mine Workers, as a means of defeating the efforts of a Teamsters Local to organize its workers. The cease-and-desist order which issued was in the standard form directing the company to withdraw and withhold recognition from District 50 unless and until it received the Board’s certification as the exclusive representative of the employees. 112 N. L. R. B. 387. But the United Mine Workers is not in compliance with § 9 (f), (g), and (h), added by the Taft-Hartley amendments to the National Labor Relations Act, 61 Stat. 143, 29 U. S. C. § 159 (f), (g), (h). It is therefore not eligible for a Board certification and in consequence the Bowman employees may never have an opportunity to select District 50 as their representative. The Board denied the United Mine Workers’ application to delete the requirement for a Board certification. 113 N. L. R. B. 786. The question arises whether the requirement for a Board certification in these circumstances exceeds the Board’s discretionary power under § 10 (c), 29 U. S. C. § 160 (c), to fashion remedies to dissipate the effects of an employer’s unfair labor practices in assisting a union.
The union petitioned the Court of Appeals for the District of Columbia under § 10 (f), 29 U. S. C. § 160 (f), which authorizes a Court of Appeals to “enter a decree enforcing, modifying, and enforcing as só modified, or setting aside in whole or in part the order of the Board . . . .” The Court of Appeals, 99 U. S. App. D. C. 104, 237 F. 2d 585, did not delete the provisions for Board certification but modified the order so that the company would be free to recognize District 50 not only when certified by the Board but, alternatively, when District 50 “shall have been freely chosen as such [representative] by a majority of the employees after all effects of unfair labor practices have been eliminated.” 99 U. S. App. D. C., at 107, 237 F. 2d, at 588.
The Board’s order also required the company to post for at least 60 days a notice prepared by the Board. In the notice the^company would state to its employees that it would not discourage membership in, or interrogate the employees concerning their activities on behalf of, “. . . Teamsters . . . Local No. 612, or any other labor organization . . . ,” and, further, that the company would “. . . withhold all recognition from District 50 . . . unless and until said organization shall have been certified as such representative by the . . . Board.” 112 N. L. R. B. 387, 391. The parties raised no objection to the notice either before the Board or in the Court of Appeals. However, the Court of Appeals on its own motion struck from the notice the references to the Teamsters Local, stating its view that “references to that union in the Board’s form of notice are susceptible of being construed as” indicating that the Board “prefers Teamsters.” 99 U. S. App. D. C., at 108, 237 F. 2d, at 589. The court also added, to the paragraph in the notice stating that the company would withhold recognition from District 50 until the union received a Board certification, the alternative “or [until District 50] shall have been selected as such [representative] by a majority of our employees at a time at least 60 days later than the date of this notice.” 99 U. S. App. D. C., at 109, 237 F. 2d, at 590.
Because important questions of the administration of the Act were raised, we granted certiorari on the Board’s petition. 352 U. S. 999.
The Board’s order was fashioned under § 10 (c), 29 U. S. C. § 160 (c), which vests remedial power in the Board to redress unfair labor practices by “an order requiring such person [committing the unfair labor practice] to cease and desist from such unfair labor practice, and to take such affirmative action ... as will effectuate the policies of this Act . . . .” The Board’s discretionary authority to fashion remedies to purge unfair labor practices necessarily has a broad reach. Labor Board v. Link-Belt Co., 311 U. S. 584, 600. But the power is not limitless; it is contained by the requirement that the remedy shall be “appropriate,” Labor Board v. Bradford Dyeing Assn., 310 U. S. 318, and shall “be adapted to the situation which calls for redress,” Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333, 348. The Board may not apply “a remedy it has worked out on the basis of its experience, without regard to circumstances which may make its application to a particular situation oppressive and therefore not calculated to effectuate a policy of the Act.” Labor Board v. Seven-Up Bottling Co., 344 U. S. 344, 349. The Board’s provision for a Board certification must therefore be examined in the light of its appropriateness in the circumstances of this case.
In formulating remedies for unfair labor practices involving interference by employers with their employees’ freedom of choice of a representative, the Board has always distinguished the remedy appropriate in the case of a union dominated by an employer from the remedy appropriate in the case of a union assisted but undomi-nated by an employer. In the case of a dominated union the Board usually orders the complete disestablishment of the union so that it can never be certified by the Board: This Court has sustained such orders. Labor Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261; Labor Board v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241. On the other hand, in the case of the assisted but undominated union, the Board has consistently directed the employer to withhold recognition from the assisted union until the union receives a Board certification. The basis for the distinction is that, in the Board’s judgment, the free choice by employees of an agent capable of acting as their true representative, in the case of a dominated union, is improbable under any circumstances, while the free choice of an assisted but undominated union, capable of acting as their true representative, is a reasonable possibility after the effects of the employer’s unfair labor practices have been dissipated. See Labor Board v. Wemyss, 212 F. 2d 465, 471, 472.
The reason for the Board’s certification requirement is to invoke the normal electoral processes by which a free choice of representatives is assured. The Board’s opinion in this case states that
“. . . the Board has, since its earliest days, recognized that the policies of the Act could best be effectuated in cases involving violations of Section 8 (a) (2) by directing the offending employers to withhold the preferred treatment afforded to the labor organizations involved until the effect of the unfair labor practices had been dissipated and the majority status of such unions had been established in an atmosphere free of restraint and coercion.” 113 N. L. R. B. 786, 787.
Again,
“. . . in the case of an assisted but undominated labor organization, the Board has required the offending employer to withdraw and withhold recognition from the assisted union until it was certified, thus enabling the Board to assure the affected employees that their statutory right to freely choose a bargaining representative shall be preserved by conducting an election under conditions which will render such a choice possible.” 113 N. L. R. B. 786, 788.
It is thus clear that the most significant element of the remedy is not the formality of certification but an election, after a lapse of time and under proper safeguards, by which employees in “the privacy and independence of the voting booth,” Brooks v. Labor Board, 348 U. S. 96, 99-100, may freely register their choice whether or not they desire to be represented by the assisted union.
In this case of a noncomplying union, however, requiring the formality of Board certification in addition to an election has the same effect as disestablishment. This is because District 50 can never be certified by the Board so long as the United Mine Workers remain out of compliance with § 9 (f), (g), and (h). But disestablishment has been applied by the Board and upheld by the courts only in the case of a dominated union, where a free choice of a truly representative union is improbable under any circumstances, and therefore where an abridgment óf the statutory right of employees does not result. District 50 was found by the Board to be an assisted but not a dominated union, so that a free choice of District 50 by Bowman’s employees is a reasonable possibility. Therefore the certification requirement here misapplies the Board’s own policy by actually defeating the statutory rights of Bowman’s employees.
The Board reasoned that since this Court has sustained its power under § 10 (c)' “to dissipate the effect of an unfair labor practice by completely removing a dominated union . . . , the Board manifestly has the statutory power to impose the lesser sanction of certification in the case of an assisted union . . . .” 113 N. L. R. B. 786, 788. Even if we grant the premise that the Board may remove a dominated union, it does not follow that the Board may remove this merely assisted union. Certification under the circumstances of this case is not the “lesser sanction” but is substantially the same as removal. Unlike an assisted union, a dominated union is deemed inherently incapable of ever fairly representing its members. Labor Board v. Pennsylvania Greyhound Lines, Inc., supra, at 270, 271; Labor Board v. Newport News Shipbuilding & Dry Dock Co., supra, at 250.
We do not think, however, that the Board lacks authority to effect a remedy in this case which would properly reconcile the objectives of eliminating improper employer interference and preserving the employees’ full choice of a bargaining representative. The prohibitions of § 9 (f) and (h) against investigation of representatives, the requirement of § 9 (c) of Board-conducted elections connected with such investigations, and the prohibition of § 9 (g) against certification of a non complying union, are concerned not with remedial orders under § 10 (c) but with questions of representation and unfair labor practices “raised by a labor organization.” The single objective of § 9 (f), (g), and (h) was “to stop the use of the Labor Board” by noncomplying unions. Labor Board v. Dant, 344 U. S. 375, 385. These subsections contain nothing compelling the Board to insist upon a Board certification and thus to deny the employees the right at an election held under proper safeguards to select the noncomplying assisted union for their representative. Nothing in the subsections, for example, is a barrier to the conduct by the Board of an election not followed by a certification, or to the making of an arrangement with another appropriate agency, state or federal, for the conduct of the election under conditions prescribed by the Board. Clearly an election under such circumstances will also achieve the Board’s prime objective in these cases, viz., to “demonstrate that . . . [the assisted union’s] right to be the exclusive representative of the employees involved has been established in an atmosphere free of restraint and coercion.” 113 N. L. R. B. 786, 788. Indeed, in its brief, the Board impliedly admits the irrelevance of the formality of certification to the effectiveness of the fashioned remedy, stating that “. . . if that view [of certification] is rejected, the Board may perhaps devise other measures which will enable it to make certain that the employees’ choice of bargaining representative is in fact made in an atmosphere free of restraint and coercion . . . .” In a footnote the Board suggests such an alternative: “. . . [T]he Board might conduct an election among the employees and certify the union if it wins the election provided it is in compliance but otherwise certify only the arithmetical results. . . .”
The Board’s opinion also states that to dispense with a certification in the case of a noncomplying assisted union, while requiring a certification in the case of a complying union, “would negative the policy and intent of Section 9 (f), (g), and (h) of the Act.” 113 N. L. R. B. 786, 790. But this misinterprets the scope of those provisions. “Subsections (f), (g) and (h) of § 9 merely describe advantages that may be gained by compliance with their conditions. The very specificity of the advantages to be gained and the express provision for the loss of these advantages imply that no consequences other than those so listed shall result from noncompliance.” United Mine Workers v. Arkansas Oak Flooring Co., 351 U. S. 62, 73. Congress did not in § 9 (f), (g), and (h) make the filing required by those subsections compulsory or a condition precedent to the right of a noncomplying union to be recognized as the exclusive representative of the employees. United Mine Workers v. Arkansas Oak Flooring Co., supra. Similarly, the Board cannot, through the requirement of a Board certification, make noncompliance a reason for denying the employees the right to choose the assisted union at an election which can readily serve its designed purpose without such certification. Finally, we do not believe that the issuance of an order in the case of a noncomplying assisted union different from the form of order consistently used in cases of complying assisted unions extends “preferred treatment” to the noncomplying union. What it does in fact is to give the noncomplying union substantially the same treatment as a complying union instead of subjecting it to disabilities not intended by Congress as a result of noncompliance. The Board’s order is therefore not appropriate or adapted to the situation calling for redress and constitutes an abuse of the Board’s discretionary power.
However, the modifications of the cease-and-desist order made by the Court of Appeals go beyond permissible limits of judicial review under § 10 (f) and cannot be sustained. The Court’s alternative to Board certification dispenses with the necessity of an election and can be interpreted, as the Board argues, to leave to the offending employer and the assisted union the decision when the effect of the unfair labor practice has been eliminated and the employees have regained their freedom of action. Nothing said in the Arkansas Flooring case, upon which the Court of Appeals relied, justifies the Court of Appeals in going so far as to dispense with an election under proper safeguards. This Court has long recognized the propriety of an agency’s chqice of an election as the proper means to assure dissipation of the unwholesome effects of the employer’s unlawful assistance to a union. See Texas & New Orleans R. Co. v. Brotherhood of Railway Clerks, 281 U. S. 548. The Board’s discretion here was exceeded only in the inflexibility of the requirement for a Board certification notwithstanding its inappropriateness in the circumstances of this case.
The rewriting of the notice to be posted was improper insofar as it deleted reference to the Teamsters Union, because no objection to the notice in this respect was ever raised by the parties before the Board. Labor Board v. Seven-Up Bottling Co., 344 U. S. 344, 350; Labor Board v. Cheney California Lumber Co., 327 U. S. 385, 388-389; cf. Federal Power Comm’n v. Colorado Interstate Gas Co., 348 U. S. 492, 497. Section 10 (e) of the Act provides: “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the . . . [Court of Appeals], unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” No extraordinary circumstances were shown here.
The orderly administration of the Act and due regard for the respective functions of the Board and reviewing courts require that we vacate the judgment of the Court of Appeals with instructions to remand the case to the Board for further proceedings consistent with this opinion.
It is so ordered.
The Teamsters Local was International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local No. 612. The Board concurred in the Trial Examiner’s findings that when the Teamsters Local was picketing the premises the company rendered illegal support and assistance to District 50 by negotiating the details of a contract with officials of that union before a single employee had actually authorized it as a representative, by showing the draft contract to the drivers at a meeting convened by and presided over by the company president, who assured them that if necessary he would advance the money for dues, after which, and within less than three hours, the drivers signed District 50 authorization cards, established a local which held its first meeting, at the president’s suggestion, on company premises, and concluded a contract with the company.
This remedy was apparently first adopted in Lenox Shoe Co., 4 N. L. R. B. 372, 388, decided December 3, 1937.
Subsection (f) provides that no investigation shall be made by the Board concerning the representation of employees raised by a labor organization, and no complaint of unfair labor practices shall be issued pursuant to a charge made by a labor organization, unless the organization and any national or international labor organization of which it is an affiliate or constituent shall have filed with the Secretary of Labor copies of the union’s constitution and by-laws and a report showing, among other things, the names of officers and agents whose aggregate compensation and allowance for the preceding year exceeded $5,000, the amounts paid to each, the manner in which such officers and agents were selected, the amount of initiation fees and dues charged to union members, the union’s procedures followed with respect to qualification for membership, election as officers and stewards, etc. The subsection also requires the filing with the Secretary of a report showing union receipts, disbursements, and assets and liabilities. Subsection (g) requires, among other things, the filing annually with the Secretary of reports bringing up to date the information required to be supplied under subsection (f). Subsection (h) provides that no investigation of a question of representation raised by a labor organization shall be made and no complaint of unfair labor practices pursuant to a charge made by a labor organization shall issue unless there is on file with the Board an affidavit executed within the preceding year by each officer of the organization and the officers of any national or international labor organization of which it is an affiliate or constituent that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member or supporter of, any organization that believes in or teaches the overthrow of the United States Government by force or by illegal or unconstitutional methods.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
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songer_respond2_1_3
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
GIBSON v. VINTON et al.
Circuit Court of Appeals, Eighth Circuit.
July 28, 1927.
No. 7738.
1. Courts <©=>264(3) — Federal court has jurisdiction of ancillary suit by its receiver, irrespective of parties’ citizenship or amounts involved. ,
Federal court has jurisdiction of an ancillary suit by its receiver, without regard to citizenship of -the parties or amounts involved.
2. Abatement and revival <©=>45 — Receiver’s suit to wind up affairs of corporation held not abated by decree directing return of property to corporation.
A suit brought by a receiver of a federal court in winding up affairs of the receivership, or for the collection of assets, was not abated by a decree directing return of the property held by the receiver to defendant corporation, where court retained jurisdiction of the suit by the express terms of the decree.
3. Sales <©=>202(6) — Goods shipped, consigned to seller, with draft attached to bill óf lading, remain property of seller until draft is paid, as regards liability for loss.
Where a seller ships goods consigned to himself, with sight draft for the price attached to bill of lading, he retains title and possession until draft is paid, and any loss from damage to the goods before that time falls on him.
In *Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.
Action at law by T. 0. Vinton, receiver, and another, against John K. Gibson. Judgment for plaintiffs, and defendant brings error.
Affirmed.
Basil Baker, of Jonesboro, Ark., and G. M. Gibson, of Walnut Ridge, Ark., for plaintiff in error.
R. G. Brown, of Memphis, Term., for defendants in error.
Before KENYON, Circuit Judge, and MOLYNEAUX and JOHN B. SANBORN, District Judges.
MOLYNEAUX, District Judge.
This action was brought by T. 0. Vinton, as receiver for the National Cottonseed Products Corporation, against the defendant, John K. Gibson, to recover damages in the sum of $1,710.71, on account of the damaged condition of two cars of cottonseed shipped under conditions hereinafter stated.
The National Cottonseed Products Corporation, hereinafter referred to as “National,” was placed in the hands of four receivers in the federal courts for the Western district of Tennessee and the Eastern district of Arkansas, September 16, 1925. T. 0. Vinton, succeeding' the four receivers, was appointed receiver of the National on the 7th day of October, 1925, by the District Court of the United States for the Western District of Tennessee, Western Division, and a similar order was entered in the District Court of the United States for the Eastern District of Arkansas, Little Rock Division. Vinton qualified in accordance with the orders of said court. He, as such receiver, brought this action. At the time the receivers were appointed on the 16th day of September, 1925, John K. Gibson, defendant, was indebted to the corporation in the sum of $5,000, evidenced by note.
In September, 1925, A. G. Ba.ttison, manager of the Roberts Cotton Oil Mill, located at Jonesboro, Ark., one of the properties of: the National, made a verbal contract with Gibson to ship five ears of cottonseed to the Roberts mill at a price of $40 per ton, f. o. b., the proceeds to be credited upon said note. Written confirmation of this purchase was drawn up by Pattison and forwarded to Gibson, who executed the same on September 21st, 1925. After confirmation was sent to Gibson, a clause was added as follows:
“This contract is accepted with the understanding that should the Roberts Cotton Oil Company fail to get into position to operate they will take these seed at the Dixie mill in Memphis, and that I will be protected from all loss or damage on account of receivership which these two mills are contemplated to be operated under.” Gibson testified that he had a telephone conversation with James Roberts, manager of the Dixie mill, as a result of which the memorandum was placed on the confirmation. This conversation took place September 22d, as shown by Gibson’s letter of that date. On that date Gibson shipped a ear of seed (not one of the five embraced in the contract sued upon), the shipment being made to shipper’s order, sight draft, bill of lading attached.
September 24th, Roberts wrote to Gibson as follows:
“Memphis, Tenn., September 24, 1925.
“Jno. K. Gibson, Lauratown, Tenn. [should be Arkansas] — Dear Sir: We have yours of the 22d, and have just talked to you over the phone. You may feel assured that I am going to take care of your interests. I had the receivers write you a letter yesterday stating that the cars you care to ship in on open bill of lading lo us would be applied against your note now hold at Jonesboro, so that it would relieve any undue anxiety on your part that the funds would not reach the proper source. I appreciate your friendship a good deal more than to get you in trouble over a shipment of cottonseed, and therefore, should I see anything coming up that would hinder me from carrying out what I say, I would certainly not allow your seed to come in to this plant and he unloaded.
“Yours truly, James Roberts,
“Manager.”
Gibson’s answer to this letter is hereinafter referred to.
October 1, 1925, Gibson shipped two cars of cottonseed to the Dixie mill in Memphis, car S. L. S. F. No. 36213, which reached destination October 8th, and car K. C. F. S. & M., No. 43010, the contents of which reached Memphis in two ears on October 11th. These cars were consigned by Gibson to his own order, with sight draft attached to bill of lading. Neither of the bills of lading were indorsed or assigned by the shipper.
Defendant’s proof, which is uncontradieted, shows that the seed was in good condition when it left Portia. Plaintiff’s proof, which is uncontradicted, shows that all of the seed was in very had condition when the cars reached Memphis.
There appears to be no dispute as to the amount of the damages. A jury returned a verdict by the direction of the court for the amount prayed for in the complaint. The original contract for shipment of the seed was made with the four receivers who were first appointed, and who were succeeded by T. O. Vinton. The seed were shipped during the incumbency of the four receivers, and reached Memphis after the appointment of Vinton and the discharge of the four reeeivr ers. Thfe receiver paid for the seed before it reached Memphis and before he discovered '' that it was damaged. He, as such receiver, sued the shipper in the .United States court by order of the .court.' The amount involved was less than $3,000.
On June 23, 1926, long after this action was brought, a decree was entered in said receivership suit in the District Court for the Western District of the Western Division of Tennessee, in which it was decreed that the receiver should turn over to the' National Cottonseed Products Corporation and convey to it all of the property of said corporation held by the receiver, and required the receiver to relinquish and turn over to said corporation the management and control of the business and affairs of said corporation. The court, however, did not discharge the receiver, and reserved jurisdiction of this suit.
Again, section 9 provides for the corporation to be “substituted” for the receiver in all suits where he was the defendant and to be “joined” with him in all suits where he was the plaintiff. The receiver was not discharged. Accordingly the corporation was, on the motion of the receiver, made a party plaintiff with the receiver by order of the court.
On November 23, 1926, the appellant, Gibson, moved the lower court to dismiss the action assigning as grounds therefor, the provision of said decree before mentioned, and that in compliance therewith the corporation had taken over all of the assets as ordered. This motion was denied, and exceptions were reserved by the appellant.
Counsel for appellant have made 11 specifications of error, but in their brief they have argued and relied o,n but 2,' and the court will therefore only consider those 2, which may be summarized as follows:
(1) That the lower court had no jurisdiction to try the ease after the corporation was made .plaintiff, since the matter in dispute was less than the sum of $3,000.
(2) That the seed became the property of the receiver when shipped at' Portia, and that the quality of the seed when shipped, not the condition when received, controlled. [1] 1. Defendant urges that the court did not have jurisdiction of the matters in controversy at the time of the trial. The receiver filed his petition as ancillary to the suit under which he was appointed. It is settled law that a federal court has jurisdiction of an ancillary suit by its receiver, without regard to the citizenship of the parties or the amounts involved, and that any suit by a receiver in winding up the affairs of a receivership, or for the collection of assets, or in defense of the property in his hands as receiver, is to be regarded as ancillary to the main suit, and is cognizable in the federal court, regardless either of citizenship or the amount in controversy. Wilson v. K. C. Light Co. (D. C.) 300 F. 185, and authorities there cited. White v. Ewing, 159 U. S. 36, 15 S. Ct. 1018, 40 L. Ed. 67; Kelley v. Gill, 245 U. S. 116, 38 S. Ct. 38, 62 L. Ed. 185; Rose’s Fed. Jur. (3d Ed.) 417, 418.
2. It is contended by the defendant that thfe action abated upon the entry, of the decree of June 26, 1926. In that decree the receiver was ordered to turn over to the corporation possession of all its property which was in his possession, and also to turn over to it the management and control of the business. However, the receiver was not discharged by the decree, and it was expressly provided by section 7 of the decree as follows:
“Should there be any property now properly belonging to the receiver, and which should hereunder have been conveyed and delivered to the National Corporation, which shall not be delivered as by right it should have been, there is hereby vested in the said National Corporation full right and title to sue for and recover the same in this court in this cause, and jurisdiction to that end is hereby specifically retained.”
»Again, section 9 of the decree provides for the corporation to be “substituted” for the receiver in all suits where he was defendant and be “joined” with him in all suits where he was plaintiff. It thus appears that the lower court retained jurisdiction of this suit by the express terms of the decree.
Moreover, it is a rule: “A fortiori an action by or against a receiver will not abate because of an order of the court restoring the property to the possession of the corporation, but not discharging the receiver.” Volume 1, C. J. under the head of “Abatement and Revival,” § 232, pp. 147,138, and authorities there cited.
In Cowen v. Merriman, 17 App. D. C. 186, the court held that an order of the Supreme Court of the District of Columbia, sitting as an equity court, passed in a cause in which receivers of a railroad company were appointed, directing the railroad property to be returned to the possession of the company, but not finally discharging the receivers, would not abate an action previously commenced on the law side of the court against the receivers, for the negligent killing of plaintiff’s intestate, but such action might proceed to judgment notwithstanding such order.
We think the action was not abated by the decree in question.
3. The main question to bo decided is: Was the cottonseed plaintiff’s property or defendant’s property when placed on board the cars and shipped from Portia?
The evidence bearing upon that question does not seem to be conflicting. Gibson owed the National $5,000, borrowed money, represented by a note, and agreed verbally with Pattison, manager of the Jonesboro mill, to ship five cars of “good, sound, dry, clean cottonseed” at $40 per ton, f. o. b.' ears, proceeds to be applied to the payment of the note, settlement to be based on mill weights. This contract was reduced to writing and was signed by Gibson on September 21, 1925. Prior to the signing of the written contract, Gibson had a telephone conversation with James Roberts, manager of the Dixie mill, in Memphis, in which defendant had stated that he wanted to have the proceeds of these five ears applied to the payment of his note. Roberts agreed to this, and had tho receivers write to Mr. Gibson to that effect. This letter crossed in the mails a letter written by Gibson to the Dixie Cotton Oil Company on September 22d, which letter was mainly in regard to a car of seed Gibson had sold to Roberts over the telephone on September 21st, for delivery to the Dixie mill, and which Roberts had agreed might he shipped to shipper’s order, sight draft, with hill of lading attached. This sale had no connection with the contract made with Mr. Pattison some days before for the delivery of five ears of seed, proceeds to be applied to the payment of Mr. Gibson’s $5,-000 note. This is shown by the last sentence of the letter which reads as follows: “Kindly call me np as soon as yon can take seed at Jonesboro, and I will ship the five ears in there that I sold yon yesterday over the telephone.”
This letter reached Mr. Roberts on September 24th, and Mr. Gibson had another telephone conversation on tho same date, as shown by Mr. Roberts’ letter of that date, which reads as follows: “We have yours of the 22d, and have just talked to you over tho phone. You may feel assured that I am going to take care of your interest. I had the receivers write you a letter yesterday stating that the cars you care to ship in on open hill of lading to ns would be applied against your note now hold at Jonesboro, so that it would relieve any undue anxiety on your part that
the funds would not reach the proper source. * * * 39
Mr. Roberts’ letter was received by the defendant on September 25th, and on that date ho wrote Mr. Roberts as follows: “I am in receipt of your letter of the 24th and I note very carefully what you have to say in regard to shipment of cottonseed to you, and I would like the best in the world to ship you every seed I have got; hut I do not want to take a chance on getting a car of seed tied np over there and having trouble over there. I know very well you would not intentionally get me into any trouble, but you have got a bunch around you; some of them would do anything. I wish you were hack at Jonesboro running your Roberts Cotton Oil Company. I believe you would make more money by doing so. If I ship any seed in there, I feel that you should get an order from court instructing you to accept the seed and apply them on the note which you hold of mine. Now, if you will do this, and mail me a copy of the order, I will pay that note off, just as soon as it quits raining, with shipments of cottonseed. I would be very glad indeed to hear that you were out of the hands of the receivers and everything straightened up as it should he. Let me hear from you further in regard to this order, and I will start cottonseed to you. You understand my position in this matter. I am not afraid of you. If you were the only man I had to deal with over there, I would take your word, or do anything in the world I could do for you; but there are so many mixed up in this company of yours that you can’t tell what one day will bring forth, and I am sorry, too, and hope you will get straightened out.
“Your friend, Jno. K. Gibson.”
Mr. Roberts did not get an order of court instructing him to accept the seed and apply them on the note, as was requested by the above letter, and defendant shipped another ear of seed, C. N. 322,555, consigned to shipper’s order, with sight draft attached to bill of lading. Mr. Roberts took up tho draft, although the seed had not arrived, and on September 29th wrote defendant as follows: “It is perfectly right, Mr. Gibson, for you to draw on us. There is no criticism to offer, except that we have orders from tho receiver to unload our seed before paying for them; but in this ease I am making this concession.”
On October 1,1925, the defendant shipped two ears of cottonseed from Portia, Ark., to Memphis, consigned to himself, and drew two drafts on the plaintiff, to which unindorsed bills of lading were attached. It conclusively appears from the evidence in this ease that the appellant, Gibson, did not ship tbe two ears in question to be applied upon Ms $5,000 note, according to Ms previous arrangement; but, on tbe contrary, it conclusively appears that tbe two cars in question were shipped by him on an umndorsed bill of lading by which the cars were consigned to himself, with sight drafts attached, for the purchase price of the goods. These drafts were paid upon presentation.
It thus appears that the plaintiff did not sMp or apply these cars upon his $5,000 note, but shipped them on a cash basis and received the cash. Where goods are shipped, consigned by bill of lading to the seller, or his agent, or to the order of the seller or his agent, the seller thereby reserves the property in the goods. Where a seller ships goods consigned to himself, with sight draft for the purchase price attached to the bill of lading, it shows an intention to retain the title and possession of the property in himself until the draft is paid. The law on this subject is stated as follows in 35 Cyc. 332:
“b. Consignment to Seller or Ifis Order. —Where goods are shipped and by the bill of lading or shipping receipt are deliverable to the seller or his agent, or to the order of the seller or his agent, the seller thereby reserves the property in the goods, even though the shipment is in care of the buyer. But the evidence afforded by the inode of shipment as to the seller’s intention is not conclusive, and the property in the goods will be held to have passed to the buyer if such appears to have been the intention of the parties, as for instance where the person who is apparently the seller is in fact the buyer’s agent in the transaction, or the goods are shipped for the account and at the risk of the buyer. But on the other hand, even in such eases an intention that the property shall not pass may appear from other circumstances and should be given effect.”
“d. Bill of Ladmg with Draft Attached. —If where there is a consignment to the seller, his agent, or order, the bill of lading is forwarded to the seller’s agent with draft attached to be delivered to the buyer on payment, the seller thereby manifests an intention to reserve the property in the goods, and the property does not pass until the draft is paid. And even when the buyer is named as consignee, if the bill of lading with draft attaehed-is sent to the seller’s agent or bank for collection the property in the goods is reserved and does not pass to the buyer until payment. A different intention may, however, be indicated by the circumstances of the transaction and will of course control, but an intention to pass the property will not be inferred from the delivery of an invoice to the buyer.”
See authorities there cited.
There were no circumstances in this case wMch would indicate that it was not the intention of the seller, Gibson, to retain the possession and title to the goods until the draft which was attached to the bill of lading, was paid. Indeed, the defendant testified repeatedly that he intended to reserve the title and possession until his drafts were paid. It conclusively appears that the title to the possession of the goods was in Gibson when the goods left Portia, and until the bill of lading was delivered to the receiver, and the draft was paid by him.
So, the property being at the time it was delivered to the receiver in a damaged and spoiled condition, contrary to the agreement to deliver “good, sound, dry, clean cottonseed,” the plaintiff’s right to recover conclusively appears. The amount of the damage is not disputed.
We find no reversible error, and the judgment of the lower court is affirmed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_state
|
14
|
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".
JABCZYNSKI et al. v. UNITED STATES.
No. 4588.
Circuit Court of Appeals, Seventh Circuit.
Nov. 20, 1931.
William C. Henry, of South Chicago, Ill., and Albert S. O’Sullivan, of Chicago, Ill., for appellants.
George E. Q. Johnson, U. S. Atty., and Daniel Anderson, Asst. U. S. Atty., both of Chicago, Ill., for the United States.
Before EYANS and SPARKS, Circuit Judges, and BALTZELL, District Judge.
BALTZELL, District Judge.
The appellants herein are charged jointly, in a grand jury indictment in five counts with the violation of the National Prohibition Act (27 USCA). The first count charges them with the unlawful possession of intoxicating liquor; the second, third, and fourth counts each charge them with the unlawful sale of intoxicating liquor; and the fifth count charges them with the unlawful maintenance of a common nuisance at 3328 East Eighty-Ninth street, Chicago, Ill. A trial was had to the court without the intervention of a jury; both appellants were convicted, and both are now prosecuting this appeal.
While a number of errors are assigned by appellants, only two need be considered. Tbe first being whether or not there was a proper waiver of jury, and the second, if the jury was properly waived, whether or not there is evidence sufficient to sustain the finding of the court.
That a jury may he waived in the trial of a criminal'ease there is no doubt. Patton v. U. S., 281 U. S. 276, 50 S. Ct. 253, 74 L. Ed. 854, 70 A. L. R. 263.
Appellants do no't contend otherwise, but they do contend, however, that there should have been a written stipulation of waiver filed. There is no statute defining the method by which a jury may be waived in the trial of criminal cases, as there is in civil cases. While the Constitution of the United States gives every person charged with the commission of a crime (certain exceptions therein being contained) the right of a trial by jury [Const. art. 3, § 2, cl. 3, and Amend. 6], yet it has recently been held by tbe Supreme Court in Patton v. United States, supra, that such right may be waived. A careful analysis of that ease fails to disclose that such waiver must be in writing. Tbe record in the instant case discloses that the appellants were present in court; that they were represented by counsel; and that the cause was submitted to the court for trial without a jury. Furthermore, the bill of exceptions specifically states that the jury was orally waived. While it is highly preferable that a written waiver of jury in a criminal case, signed by the defendant or defendants personally, bo filed, yet, in the absence of a statute, such procedure is not mandatory. The fact that the waiver was made orally instead of being in writing does not in any manner deprive appellants of their constitutional right, and is no cause for complaint. Having thus waived such right, even though orally, they cannot now bo heard to complain.
The second question presented is whether or not there is evidence to support the finding of the trial court. Upon this question there can be no doubt. That there is a variance between the testimony of government’s witnesses and the appellants is conceded, but that fact alone does not necessarily mean that the appellants are right and that the government’s witnesses are in error. There is evidence tending to establish the guilt of the defendants, as charged in the indictment, and there is also evidence given by the defendants tending to establish their innocence of those charges.
No good purpose will be served by discussing at length the testimony of the various witnesses. A careful examination of all the testimony convinces us that there is evidence from which the trial judge was justified in arriving at the conclusion that the defendants are guilty as charged. Having thus determined, this eourfc cannot disturb such finding. Burton v. U. S., 202 U. S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; Harley v. U. S. (C. C. A.) 269 F. 384; Allen v. U. S. (C. C. A.) 4 F.(2d) 688.
The judgment of the District Court is 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:
|
songer_procedur
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Appellee, v. Daniel FATICO, Appellant.
Nos. 1092-93, Dockets 79-1100, 79-2042.
United States Court of Appeals, Second Circuit.
Argued June 5, 1979.
Decided Aug. 13, 1979.
Michael Rosen, Saxe, Bacon & Bolán, P. C., New York City (Roy M. Cohn and Howard F. Husum, New York City, of counsel), for appellant.
Paul F. Corcoran, Sp. Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., E. D. New York, and Harvey M. Stone, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.
Before OAKES and MESKILL, Circuit Judges, and STEWART, District Judge.
Of the Southern District of New York, sitting by designation.
OAKES, Circuit Judge:
This is the second appeal in connection with appellant’s sentencing. The court imposed the sentence, four years’ imprisonment to be served consecutively to another sentence imposed for a different crime, appeal as to which is pending, after a plea of guilty in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge. The plea was to a conspiracy charge under 18 U.S.C. § 371 as a result of the hijacking of three trucks and their contents from John F. Kennedy Airport in violation of 18 U.S.C. § 659. Both appeals have arisen out of challenges by appellant’s counsel to statements or suggestions in the presentence reports that appellant has strong ties to organized crime and is a “made” member of the Gambino organized crime family.
THE FACTS
Precipitating the first appeal, which was by the Government, was Judge Weinstein’s holding that, although membership in and ties to organized crime are material facts to be considered in sentencing, he would exclude as hearsay involving Due Process and Confrontation Clause limitations any evidence presented through an agent of the Federal Bureau of Investigation (FBI) from a reliable but confidential informer who was allegedly a member of the same New York organized crime “family.” United States v. Fatico, 441 F.Supp. 1285 (E.D.N.Y. 1977). This court agreed that “[t]he Due Process Clause is plainly implicated at sentencing,” United States v. Fatico, 579 F.2d 707, 711 (2d Cir. 1978) (Fatico I), but noted generally that it did not necessarily follow that Due Process required all the procedural safeguards and strict evidentiary limitations of the criminal trial itself. And we held specifically that Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), permitting reliance on hearsay information even though the defendant could not confront or cross-examine the witnesses who supplied the information, was still viable despite Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion), which held that Due Process guaranteed against the imposition of the death penalty on the basis of information not disclosed at all. Thus we stated that
Due Process does not prevent use in sentencing of out-of-court declarations by an unidentified informant where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means. Thus, the trial court erred in excluding the agent’s testimony about the informer’s declaration once the Government represented that it would produce the specified corroboration.
579 F.2d at 713 (footnotes omitted). Accordingly, we reversed the district court’s exclusion of the evidence and remanded the cause for sentencing proceedings, but at the same time specifically stated that “the weight given to the informer’s declarations and the assessment of credibility are matters for the sentencing court.” Id. at 713 n.14.
On remand, the district court held an evidentiary sentencing hearing at which the Government called ten witnesses, seven of whom were law enforcement agents (four with the FBI). The law enforcement officers’ testimony indicated that seventeen different informers had told them that appellant and his brother were long-time, active members of the Gambino family. The Gambino family is one of the five active organized crime families operating in the greater New York City metropolitan area. There was also information to the effect that appellant was a “made” member, that is, one who has officially been initiated as a full-fledged member of the family, not born into it but not merely associated with it. Largely on the strength of this testimony, which the court found “highly probative,” United States v. Fatico, 458 F.Supp. 388, 412 (E.D.N.Y.1978), the court, after numerous holdings of law, said: “While we must remain dubious of any conclusions based upon hearsay, the Government’s proof here meets the rigorous burden of ‘clear, unequivocal and convincing evidence.’ The probability is at least 80% that defendant is an active member of an organized crime family.” Id.
The court then sentenced appellant to four years’ imprisonment out of a maximum of five, 18 U.S.C. § 371, to run consecutive to a three-year sentence imposed in the Eastern District on a federal gambling charge, 78 Cr. 19-1 (E.D.N.Y.), a conviction now on appeal. Doing so, however, the court stated that “[w]ere it not for the organized crime issue, defendant would have been sentenced in the hijacking case to no more than a three year term, concurrent with the gambling sentence.” 458 F.Supp. at 412. The court went to some length to point out how the organized crime characterization was very likely to have a number of serious ramifications for appellant in prison, including designation as a “special offender” under Correction Authority and Parole Board decisions, with resultant confinement in a high security facility and ineligibility for certain rehabilitative programs, early parole, and other privileges. See generally Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975).
We affirm the decision below imposing sentence by no means, however, endorsing all the rules of the district court.
DISCUSSION
Appellant raises five points on appeal:
1. The court’s admission of evidence based on information derived from undisclosed informers coupled with the Government’s refusal to provide counsel with “3500” material, 18 U.S.C. § 3500, denied appellant due process.
2. Under Fatico I, supra, there was insufficient evidence to corroborate the information that the undisclosed informers supplied.
3. Under the trial court’s “clear, unequivocal and convincing evidence” standard, there was insufficient evidence that appellant was a “made” member or an im-' portant figure in the upper echelons of the Gambino family.
4. The proper burden of proof was upon the Government and in any event was “beyond a reasonable doubt.”
5. Appellant was entitled to Jencks Act or “3500” material, viz., prior statements of the law enforcement agents testifying at the sentencing hearing.
The first point has been answered adversely to appellant in Fatico I, supra, and by the line of cases in note 8 supra.
On the second point there was more than ample evidence to corroborate under Fatico I, supra, 579 F.2d at 713, the information that the undisclosed informers supplied. We suggested in Fatico I that sufficient reliability was apparent from corroboration by testimony of the two coconspirators, the nature of the crime itself (armed hijacking of valuable truck loads requiring sophisticated fencing through quasi-legitimate and criminal business groups, of which Judge Weinstein had earlier taken judicial notice, 441 F.Supp. at 1288), and in-court testimony of those who observed appellant and his brother associating with members of the Gambino family. Although Judge Weinstein rejected the testimony of the coconspirators as essentially unreliable, 458 F.Supp. at 412, and did not refer at all to the nature of the crime itself, he found “highly probative” the testimony of “seven different government agents, four of them from the FBI, relying on a total of seventeen independent informants.” As he put it so well, “Even if one or several of these experienced agents miscalculated the reliability of an informant, the large number of agents and informants . greatly reduces the margin for error.” Id. Appellant argues that quantity may not make up for quality of evidence. But under Williams v. New York, supra, as well as Fatico I, hearsay evidence is admissible if reliable. And although it is also possible that ten persons who have heard the same rumor may each be wrong, here we recognize that there are other independent facts, including personal observations and the nature of the crime itself, that go to corroborate the informers’ statements.
The third argument is somewhat more pointed. Appellant argues that the evidence did not show that he was a “made” member of the Gambino family. According to the testimony appellant was one of some 1,100 “made” “soldiers” or “buttons” in the Gambino family. One of the informers, who a retired FBI agent testified was himself a “reliable, long active and highly placed member of the Gambino family,” 458 F.Supp. at 392, told the agent on Easter Sunday 1978 that the Fatico brothers had been such members for over twenty years. There was much other testimony to the same effect as well as testimony that the Fatico brothers, operating with a crew of associates out of the Bergen Hunt and Fish Club in Ozone Park, New York, ran gambling, loan sharking, truck hijacking, and other illegal enterprises which are frequently a hallmark of organized crime.
On the fourth point, we do not agree that the burden of proof on the Government should be “beyond a reasonable doubt.” Such a standard would turn sentencing hearings into second trials. As Judge Friendly said of sentencing hearings in Hollis v. Smith, 571 F.2d 685, 693 (2d Cir. 1978), although expressly noting Judge Weinstein’s opinion leading to Fatico I, 441 F.Supp. 1285, “[t]here is no authority binding upon us which holds that the procedure in proceedings relating solely to punishment, even when an additional fact has to be established, must conform precisely to those in proceedings relating to guilt, and we see no basis in principle for so holding.” We believe that Fatico I, supra, is a sufficient answer to appellant’s fourth point.
The fifth point on this appeal in respect to the Jencks Act is in reality an attempt to have us overturn United States v. Sebastian, 497 F.2d 1267 (2d Cir. 1974), United States v. Percevault, 490 F.2d 126 (2d Cir. 1974), and United States v. Covello, 410 F.2d 536 (2d Cir.), cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136 (1969), something that we cannot do absent treatment of the issue en banc. Compare United States v. Murphy, 569 F.2d 771, 774 n.11 (3d Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1588, 55 L.Ed.2d 807 (1978).
Judgment affirmed.
. This holding was based on 18 U.S.C. § 3577, which provides:
“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” Appellant did not challenge the materiality of information as to his links to organized crime on either the former appeal or this one.
. We distinguished Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion), from Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), on the same ground as the Supreme Court itself noted in Gardner: the sentencing judge in Williams had disclosed the information, and the defendant had not challenged its accuracy, while the judge in Gardner had not even disclosed the information, and so the defendant could not challenge its accuracy. United States v. Fatico, 579 F.2d 707, 711-12 n.10 (2d Cir. 1978) (Fatico I). We also noted that to the extent, if any, that Gardner did limit Williams, the limitation applied only to capital cases, citing Gardner, 430 U.S. at 356, 359, 360, 363-64, 97 S.Ct. 1197, 51 L.Ed.2d 393, Fatico I, supra, 579 F.2d at 711-12 n.10.
We also relied upon various cases in the circuit courts sustaining the admission of hearsay where the defendant did not dispute the information, United States v. Bass, 175 U.S. App.D.C. 282, 292-293, 535 F.2d 110, 120-21 (1976), or other evidence “sufficiently corroborated” the hearsay information, United States v. Needles, 472 F.2d 652, 659 (2d Cir. 1973). See also United States v. Weston, 448 F.2d 626, 634 (9th Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972). Fatico I, supra, 579 F.2d at 712-13.
. This court did not express any views on the sentence to be imposed but did state that it did “not understand” the trial judge’s statement that at stake was the difference between freedom and up to five years in prison. We believed that the proffered testimony on organized crime ties did not appear to alter significantly “the picture already on the record of the type of crime involved, the role of defendants as revealed at the trial and their prior conduct.” Fatico I, supra, 579 F.2d at 714 n.17.
. There was also testimony by one law enforcement officer that on more than one occasion he observed appellant with known members of organized crime. Two unindicted coconspirators, with extensive criminal records and under the Government’s witness protection program, also testified as to the Fatico brothers’ links to the Gambino family. The trial judge largely disregarded this latter testimony, as he did the testimony that the brothers attended a closed wake for a Gambino family member and evidence of appellant’s prior arrests on a variety of other charges, United States v. Fatico, 458 F.Supp. 388, 412 (E.D.N.Y.1978), none of which we fault.
. The holdings included:
(1) Sentencing is a critical stage of the criminal process. 458 F.Supp. at 396.
(2) The purpose of the 1975 amendments to Fed.R.Crim.P. 32(c)(3)(A) (mandatory disclosure to defendant or his counsel of presentence reports) reflects the importance of reliable information as a basis for proper sentencing. 458 F.Supp. at 396-97.
(3) Due process does apply to sentencing, and the reliability of factual information is important to sentencing determinations. Id. at 397-98.
(4) Defendants lack protection because (a) Fatico I, supra, held that they cannot confront informers and (b) a line of cases in the Second Circuit, see note 8 infra, has held that defendants cannot obtain under 18 U.S.C. § 3500 prior statements of the law enforcement officials. Id. at 399-400.
(5) Defendants have an important liberty interest at sentencing, id. at 400, especially if they are treated as “special offenders” in the prison system, see text at notes 6-8 infra. Id. at 401-02.
(6) The burden of proof in these proceedings could run a continuum from a “preponderance” of the evidence, to “clear and convincing” evidence, to “clear, unequivocal and convincing evidence,” to “proof beyond a reasonable doubt,” id. at 402-05, all of which may be numerically quantified in terms of probabilities.
(7) Although the provisions in the Organized Crime Control Act of 1970 for sentencing “dangerous special offenders,” note 6 infra, require proof of status only by a preponderance of the evidence, 458 F.Supp. at 406-07, where, as here, a higher sentence is based on proof of a fact not established in a criminal trial, proof should be by “clear, unequivocal and convincing evidence,” which on a quantifiable scale of probability is “above 80%,” id. at 408-12.
. Distinguish a “dangerous special offender” under 18 U.S.C. § 3575(b), see United States v. Bowdach, 561 F.2d 1160, 1171 (5th Cir. 1977). The dangerous special offender may be subject to 25 years’ imprisonment above and beyond his ordinary sentence.
. The district court pointed out that the “parole guidelines” for the gambling conviction were 12 to 16 months, 458 F.Supp. at 413, although it did not mention what they would have been for concurrent hijacking and gambling convictions.
. The court also expressed some dissatisfaction with the decision in Fatico I, supra, and the line of decisions in this court holding that the Jencks Act, 18 U.S.C. § 3500, applies only at trial, e. g., United States v. Sebastian, 497 F.2d 1267 (2d Cir. 1974); United States v. Percevault, 490 F.2d 126 (2d Cir. 1974); United States v. Covello, 410 F.2d 536 (2d Cir.), cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136 (1969), as not in compliance with the “high standards of due process expected from this country’s courts.” 458 F.Supp. at 412. See generally id. at 399-400.
. We note the Government’s request, even though it did not file a cross-appeal, that we reject not only the burden of proof standard that the district judge utilized but also the entire concept of a hearing, which apparently is now called in the criminal bar a “Fatico hearing,” in sentencing matters altogether. We decline as unnecessary to this decision to adopt any standard of proof or reject any standard except "proof beyond a reasonable doubt." And although we do not believe that a sentencing hearing will be necessary every time a defendant disputes facts or statements in the presentence report, we certainly would not hold it an abuse of discretion on the part of a district judge to hold such a hearing where there is reason to question the reliability of material facts having in the judge’s view direct bearing on the sentence to be imposed, especially where those facts are essentially hearsay. Indeed, the statute permitting appeal from the suppression of evidence at a sentencing hearing, 18 U.S.C. § 3731, on which the Government relied in appealing in Fatico I, supra, recognizes that such a hearing may be required in some cases. The thrust of United States v. Bass, 175 U.S.App.D.C. 282, 292-293, 535 F.2d 110, 120-21 (1976), United States v. Needles, 472 F.2d 652, 659 (2d Cir. 1973) and United States v. Weston, 448 F.2d 626, 634 (9th Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972), as well as of Hollis v. Smith, 571 F.2d 685, 695-96 (2d Cir. 1978), is to the same effect. The Government suggests that all that these cases—and Fatico I—mean is that the Government has the opportunity at such a hearing to “amplify” its information furnished, and not that the defendant must be given an opportunity to test that information by cross-examination. We cannot accept any such narrow view as a per se rule for the conduct of these hearings; we would have the same trouble with the proposed rule as Judge Weinstein had with our decision in Fatico I, supra. See note 8 supra.
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_procedur
|
B
|
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.
PACE COMPANY, Division of AMBAC Industries, Plaintiff-Appellee, v. Stanley RESOR, Secretary of the Army, et al., Defendant-Appellant. PACE COMPANY, Division of AMBAC Industries, Plaintiff-Appellee, v. MAXSON ELECTRONICS CORPORATION, Intervenor-Defendant-Appellant.
Nos. 71-1974, 71-1975.
United States Court of Appeals, Sixth Circuit.
Dec. 9, 1971.
Certiorari Denied March 6, 1972.
See 92 S.Ct. 1192.
Robert E. Kopp, Dept. of Justice, Washington, D. C., for Stanley Resor, and others; L. Patrick Gray, III, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., on motion for summary reversal or for stay pending appeal.
Robert L. Ackerly, Washington, D. C., for Maxson Electronics Corp.; Sellers, Connor & Cuneo, Washington, D. C., on motion for summary reversal or for stay pending appeal.
Charles M. Crump, Memphis, Tenn., for plaintiff-appellee; Apperson, Crump, Duzane & Maxwell, Memphis, Tenn., on memorandum in opposition to motion for summary reversal or for stay pending appeal; Vincent J. O’Reilly, Donald V. Bakeman, Carle Place, N. Y., Allen T. Malone, Memphis, Tenn., of counsel.
Before PHILLIPS, Chief Judge, and McCREE and KENT, Circuit Judges.
PER CURIAM.
This is an appeal from orders of the District Court granting and refusing to vacate or stay a preliminary injunction restraining the defendant-appellant from awarding a contract to the intervenor-defendant-appellant pursuant to an invitation for bids to furnish a quantity of 81MM shells for delivery to the United States Army in Vietnam.
We need not and do not reach the issue of whether the District Court had jurisdiction to issue the injunction pursuant to the provisions of the Administrative Procedure Act, 5 U.S.C. § 706, at the request of plaintiff-appellee gs a disappointed bidder. See Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940); Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970); M. Steinthal & Co. v. Seamans, 455 F.2d 1289 (D.C.Cir. 1971). Neither do we reach the issue as to whether the granting of the injunction was a proper exercise of the discretion of the trial court. We do not reach these issues because we conclude that the District Court abused its discretion in not vacating the injunction upon the representation by the Secretary of the Army that the National welfare will be materially affected by the injunction. On the basis of the affidavits on file we find the National interest to be of such overriding importance as to render the failure to vacate the injunction an abuse of discretion.
We have not been cited any authority in which any Court of the United States has enjoined the acquisition of munitions after a responsible officer has certified such munitions as necessary for support of troops engaged in military operations.
The cause is remanded to the District Court with instructions to vacate the injunction.
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_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Phillip PERKINS, Plaintiff-Appellant, v. Donald CABANA, Superintendent of M.D.O.C. and Governor of State of Mississippi, Morris Thigpen, Commissioner, Defendants-Appellees.
No. 85-4917
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
June 30, 1986.
Phillip Perkins, pro se.
Leonard Vincent, Staff Atty., Parchman, Miss., for defendants-appellees.
Before CLARK, Chief Judge, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM.
State prisoner Phillip Perkins filed this pro se class action under 42 U.S.C. § 1983 challenging the constitutionality of the Mississippi habitual offender statutes. Upon the recommendation of a magistrate, the district judge dismissed his suit for failure to state a claim upon which relief can be granted. We affirm.
Mississippi Code Ann. § 99-19-81 became effective on January 1, 1977. It provides as follows:
Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
Miss.Code Ann. § 99-19-83 provides that if one of the felonies was a crime of violence, the person must be sentenced to life imprisonment. It also requires actual service of the prior sentences of one year or more. Section 99-19-83 became effective on January 1, 1977.
Perkins argues that § 99-19-81 is an unconstitutional ex post facto law. He asserts that the law impermissibly applies to convictions that occurred as many as ten years before the effective date of the law, and that the requirement of the maximum possible sentence for the habitual offender impermissibly increases the punishment for the crime after its commission.
This retroactivity argument misses the mark. The statute defines and fixes the punishment for future felony offenses. That it does so in terms of past offenses does not punish or increase the punishment for those past offenses. The State has done no more than classify felony recidivists in a different category for punishment purposes than the category provided for first felony offenders. No person is exposed to the increased penalty unless he commits a felony after the enactment.
Perkins also argues that a prisoner convicted under the habitual offender statute may not accrue earned time credits and other privileges that prisoners convicted under other statutes may accumulate. He asserts that this distinction constitutes an equal protection violation.
This argument, too, is misplaced. The legislature has the authority to define different offenses and to provide different penalties for them. The denial of certain privileges available to first-time offenders is merely part of the enhanced penalty the legislature has chosen to exact from habitual offenders. Perkins’s suggestion that the Constitution requires a state to treat a third time offender in precisely the same manner as he was treated on his first offense is frivolous on its face. The habitual offender provision treats all prisoners convicted under it alike. The statute does not violate equal protection rights.
Perkins next asserts that § 99-19-81 conflicts with the statutory provisions that authorize the State Board of Corrections to regulate and award earned time credits, and that define parole eligibility. See Miss.Code Ann. §§ 47-5-138, 47-5-139, 47-7-3. He argues that § 99-19-81 prohibits the sentencing court from reducing or suspending the mandatory maximum sentence, but does not prohibit the State Department of Corrections from exercising its statutory authority to award earned time credits to a prisoner convicted under § 99-19-81.
The provisions on which Perkins relies were reenacted in 1984, several years after the effective date of the habitual offender statute. They express an awareness of and adherence to the mandate of that statute. Section 99-19-81 states that the sentence of a habitual offender “shall not be reduced or suspended nor shall such person be eligible for parole or probation.” Section 47-5-138(1), which authorizes the State Board of Corrections to formulate “rules and regulations providing for earned time allowances,” mandates that “[s]uch rules and regulations shall differentiate between habitual offenders for the purposes of awarding earned time or meritorious earned time.” It then defines “habitual offender” in precisely the same terms as § 99-19-81. Section 47-5-139, which was a part of the same enactment but will stand automatically repealed on July 1,1986, also provides for earned time as a reward for good conduct and performance. The statute requires a grouping of offenders into' four classifications, each classification eligible for a different amount of earned time for each month served. The statute states that “[ojffenders in Class IV shall not be allowed to earn any earned time.” Section 47-7-3(1) provides that a prisoner convicted under the habitual offender statutes is not eligible for parole. A reasonable and harmonious construction of these statutes is that the legislature intended them to maintain the enhanced penalty that § 99-19-81 imposes on habitual offenders, a penalty that includes the denial of certain privileges available to other prisoners.
Finally, Perkins argues that both §§ 99-19-81 and 99-19-83 violate the constitutional prohibition against double jeopardy because a conviction under either results in additional punishment for a past crime and conviction. This argument is essentially the same as the meritless retroactivity argument that we addressed above.
The judgment appealed from is AFFIRMED.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_trialpro
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Tom MALOUFF, Plaintiff in Error, v. UNITED STATES, Defendant in Error.
Circuit Court of Appeals, Eighth Circuit
January 25, 1929.
No. 8129.
T. J. Malouff, for plaintiff in error.
George Stephan, U. S. Atty., and Charles E. Works, Asst. U. S. Atty., both of Denver, Colo.
PER CURIAM.
Writ of error dismissed, without costs to either party in this court, for failure to file brief, as provided in stipulation of parties.
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:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
NEW YORK LIFE INSURANCE COMPANY, a Corporation, Appellant, v. Laveda NOONAN, Appellee.
No. 13960.
United States Court of Appeals, Ninth Circuit.
Sept. 24, 1954.
Rehearing Denied Oct. 26, 1954.
Davis, Jensen & Martin, Theodore B. Jensen, Donald W. McEwen, Portland, Or., for appellant.
Charles D. Dolph, Martin Schedler, Portland, Or., for appellee.
Before HEALY, POPE, and CHAMBERS, Circuit Judges.
HEALY, Circuit Judge.
This is a suit on a policy of life insurance. The contract contained a clause barring recovery of the principal sum if death by suicide should occur within a year of the issuance of the policy. The insured became a suicide. The trial court, deeming the contract to be ambiguous as regards the date on which the year began to run, resolved the ambiguity in favor of the beneficiary (appellee here) and accordingly gave judgment for the latter. The sole question on the Company’s appeal is whether an ambiguity exists in the respect mentioned.
The application for the insurance was executed by the insured on June 15,1951. For the obvious purpose of giving the insured the benefit of a lower premium rate based on his insurance age, the application asked in item 18 thereof that the policy be written to take effect March 14, 1951. A further provision of the application reads: “It is mutually agreed that: If the Applicant shall have paid the soliciting agent in cash, * * *, an amount which equals the full first premium * * *, and if the Company shall receive evidence satisfactory to it that at the time of completion of this application the proposed Insured * * * was an acceptable risk for said policy * * *, the policy as applied for shall be deemed to be in effect as from the date specified in item 18 above as if it had been delivered.”
In conformity with the application, the policy thereafter issued contained on its first page the following statement: “The anniversaries and insurance years of this Policy shall be determined from March 14, 1951, the date as of which this policy shall be deemed to take effect.” Following this provision, and immediately preceding the signatures of the Company’s authorized officers appears the clause: “In witness whereof the New York Life Insurance Company has caused this Policy to be executed on June 22, 1951, which is its date of issue.” [Italics ours.] The suicide provision in question reads: “In event of suicide within one year from the date of issue of this Policy, whether the Insured be sane or insane, the insurance under this Policy shall be a sum equal to the premiums hereon which shall have been paid to and received by the Company and no more.” [Italics ours.] The incontestability clause, so far as material, reads: “This Policy shall be incontestable after it has been in force during the lifetime of the Insured for one year from its date of issue * * [Italics ours.]
The insured’s death by suicide occurred May 23, 1952. Appellant thereafter tendered to the beneficiary the premiums paid, with interest. The tender was rejected, and the beneficiary brought this suit for recovery of the face amount of the policy. As already indicated, the court, believing the provisions of the policy and the application therefor to be conflicting or ambiguous as to the controlling date, granted judgment for the beneficiary.
We are not able to agree that conflict or ambiguity exists. The entire contract is set out in the policy and the application, which latter was expressly made a part of the contract. Clearly, the policy was in effect from March 14, 1951 for every purpose except the suicide and incontestability provisions. The latter are on their face governed by “the date of issue,” which was specifically stated in the policy to be June 22, 1951. The two dates, March 14, 1951, and June 22, 1951, serve entirely different purposes, as is readily ascertainable from a reading of the instrument. The insured’s suicide occurred within one year from the specified date of issue, hence applicant’s obligation was limited to the return of premiums paid.
A number of authorities are cited by the parties, particularly by appellant, but their citation in this opinion would serve no useful purpose.
Reversed.
. The application indicates that the insured became 52 years of age on September 15, 1950.
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_genresp2
|
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.
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.
UNITED STATES v. REAL ESTATELAND TITLE & TRUST CO.
No. 6493.
Circuit Court of Appeals, Third Circuit.
March 13, 1939.
James W. Morris, Asst. Atty. Gen., Sewall Key, J. Louis Monarch, Lester L. Gibson, Sp. Assts. to Atty. Gen., J. Cullen Ganey, Jr., U. S. Atty., of Bethlehem, Pa., Lester L. Gibon, Sp. Asst. to Atty. Gen., and Thomas J. Curtin, Asst. U. S. Atty., of Philadelphia, Pa., for the United States.
Joseph A. Lamorelle and Joseph Neff Ewing, both of Philadelphia, Pa. (Saul, Ewing, Remick & Saul, of Philadelphia, Pa., of counsel), for appellee.
Before DAVIS and BIGGS, Circuit Judges, and WATSON, District Judge.
Rehearing denied May 1, 1939.
BIGGS, Circuit Judge.
The Real Estate-Land Title and Trust Company, a Pennsylvania corporation, the appellee, sued the United States in the court below for a refund of income tax. The cause of action arises out of the fact that in December, 1930, the appellee filed a claim for refund for the fiscal year ending October 31, 1928, in the sum of $153,-125, alleging as the basis of its claim that it was entitled to deduct a loss due to obsolescence of a title insurance plant formerly owned by Land Title and Trust Company. The Commissioner of Internal Revenue disallowed the claim. The suit at bar was instituted pursuant to the provisions of Section 128(a) of the Judicial Code, as amended by the Act of February 13, 1925, 28 U.S.C.A. § 225(a). Judgment was entered for the appellee in the sum of $107,270.81, with interest as appears. The appeal at bar is from this judgment.
The question presented for our determination is whether or not the court below erred in finding that the appellee had sustained a loss during the fiscal year commencing upon November 1, 1927, and ending upon October 31, 1928, in the sum of $875,000, this amount purporting to represent the difference between the fair market value of the title plant upon March 1, 1913, and its value upon October 31, 1928. The trial judge found that the appellee was entitled to deduct this amount by way of obsolescence from its gross income for the fiscal year designated. The United States contends that this finding by the trial court was erroneous.
A brief statement of the facts leading to the dispute is necessary. The Real Estate-Land Title and Trust Company, the appellee, was formed by a merger between Real Estate Title Insurance and Trust Company, West End Trust Company and Land Title and Trust Company. The agreement of merger was executed upon October 3, 1927. The merger actually took place upon October 31, 1927, and the new company, the appellee, held its organization meeting upon the same day. The new company opened its doors for business upon November 1, 1927. Land Title and Trust Company prior to the merger had carried on a business of insuring titles to real estate in Philadelphia and for this reason possessed a title insurance plant. Real Estate Title Insurance and Trust Company also had carried on a title insurance business in Philadelphia and likewise possessed a title insurance plant. Prior to the merger Land Title and Trust Company carried its title plant upon its books at a valuation of $275,000, and Real Estate Title Insurance and Trust Company carried its title plant upon its books at a value of $143,000. For the purposes of the merger the value of the title plant of Real Estate Title Insurance and Trust Company was appreciated by $657,000 to a total value of $800,000, and the value of the title plant of Land Title and Trust Company was appreciated by $525,000 to a value of $800,-000. When the merger took place the two title plants were transferred to the appel-lee at a valuation of $800,000 each or at a total valuation of $1,600,000, and the ap-pellee took the two title plants as an asset at a valuation of $1,600,000.
Up to the time of the merger Land Title and Trust Company had issued 342,067 policies of title insurance and Real Estate Title Insurance and Trust Company had issued 436,950 such policies. All of the parties to the merger knew or should have known that the new corporation, the ap-pellee herein, would acquire two title plants designed and intended for the same purpose, namely the searching of titles of properties in Philadelphia. It appears from the evidence that the plant belonging to Land Title and Trust Company was not as efficient a plant as. that belonging to Real Estate Title Insurance and Trust Company. The plant of Land Title and Trust Company could be operated effectively with approximately one-third the number of employees required by the other.
A witness for the appellee testified that at the time the merger agreement was signed there was no plan for the disposition of the two plants. After the execution of the merger agreement but prior to the actual consummation of the merger an officer of the Land Title and Trust Company and an officer of the Real Estate Title Insurance and Trust Company examined the title plants and looked into the situation created by possession of two such' units. Following this examination, it was decided that the appellee would use the title plant formerly belonging to the Real Estate Title Insurance and Trust Company and the plant formerly belonging to Land Title and Trust Company should be stored. The daily records required to keep the plant up to date were not made after this inspection. The record shows that this failure to keep the plant to date occurred no later than October 31, 1927, and probably took place a few days earlier. The plant however was used in connection with certain sheriffs sales occurring on the first Monday in November, 1927, and certain other information was obtained from this plant and made use of by the appellee from time to time for a period of some weeks thereafter. There is no evidence, however, to show that the plant was used in connection with new searches of properties after October 31, 1927. The plant was stored in the basement of a building occupied by the appellee at 517 Chestnut Street, between the second week in October and the end of the first week in November, 1927. Shortly after the consummation of the merger, the plant was offered for sale by the appellee- for a price of $1,000,000, but no offer to purchase it was received by the appellee in any amount. It appears also that during the first year after the merger it would have been necessary to have made 227,498 entries in the records of the plant in order to keep it up to date. At the time of the mergeii there were three title plants in Philadelphia and the appellee acquired two of them by the merger.
The pertinent statute, Section 23 of the Revenue Act of 1928, c. 852, 45 Stat. 791, 799, 800, 26 U.S.C.A. § 23(1) is as follows :
“Deductions from gross income.
“In computing net income there shall be allowed as deductions:
* * * * * *
“(k) Depreciation. A reasonable allowance for the exhaustion, wear and tear of property used in the trade or business, including a reasonable allowance for obsolescence.”
Deductions from gross income cannot be made for obsolescence or depreciation of property unless used in the trade or business of the taxpayer in the taxable year in question. The trial court reached the conclusion that the plant had been used by the appellee within the meaning of the statute. That use at most' was very slight. Assuming, however, that the use by the appellee of the plant was sufficient to come within the purview of the statute, it then becomes necessary to determine whether or not the sum of $875,000 claimed by the appellee as deduction from its gross income is a reasonable allowance for obsolescence and whether in fact there was obsolescence.
The fact of the matter is that the appellee, following the merger, had two title plants upon its hands each designed to accomplish substantially the same work. It was economically undesirable to make use of both. The appellee therefore selected and made use of that plant which it felt could be most economically operated. It thereupon failed to keep the other plant up to date by placing the necessary entries in its files. At any time during the taxable year the appellee by the expenditure of funds not incommensurate with the value placed upon the plant at the time of the merger, $800,000, or the price at which it was offered for sale after the merger, $1,000,000, could have brought the plant to date and could have rendered it commercially useful as theretofore. In the case at bar the basis offered for obsolescence is really that of the duplication of property.
Obsolescence is always difficult to define. In Burnet v. Niagara Brewing Co., 282 U.S. 648, 653, 654, 51 S.Ct. 262, 264, 75 L.Ed. 594, Mr. Justice Butler, construing Section 234(a) (7) of the Revefiue Act of 1918, 40 Stat. 1078, stated: “The word is much used, and its meaning depends upon and varies with the connections in which it is employed. It has been said to be ‘the condition or process by which units gradually cease to be useful or profitable as a part of the property, on account of changed conditions.’ Obsolescence is not necessarily confined to particular elements or parts of a plant; the whole may become obsolete. Obsolescence may arise as the result of laws regulating or forbidding the particular use of the property as well as from changes in the art, the shifting of business centers, los® of trade, inadequacy, or other causes.” In United States Cartridge Co. v. United States, 284 U.S. 511, 516, 52 S.Ct. 243, 245, 76 L.Ed. 431, Mr. Justice Butler, construing the same section, stated: “ ‘Obsolescence’ may arise from changes in the art, shifting of business centers, loss of trade, inadequacy, supersession, prohibitory laws, and other things which, apart from physical deterioration, operate to cause plant elements or the plant as a whole to suffer diminution in value.” In Gambrinus Brewery Co. v. Anderson, 282 U.S. 638, 645, 51 S.Ct. 260, 262, 75 L.Ed. 588, he stated again, referring to Section 234(a) (7): “The statute contemplates annual allowance for obsolescence just as it does for exhaustion, wear, and tear. That is necessary in order to determine true gain or loss because postponement of deductions to cover obsolescence until the property involved became obsolete would distort annual income. It is well understood that exhaustion, wear, tear, or obsolescence cannot be accurately measured as it progresses and undoubtedly it was for that reason that the statute authorized ‘reasonable’ allowances to cover them in order equally to spread that element of operating expenses through the years.”
Obsolescence has been said to be “ * * * the condition or process by which units gradually cease to be useful or profitable as a part of the property, on account of changed conditions * * * ” and “ * * * the state or process of becoming obsolete”. Law of Federal Income Taxation, Paul & Mertens, Vol. 2, Section 20.110, citing First National Bank of Key West v. Com’r, 26 B.T.A. 370. Obsolescence is not always subject to accurate measurepient as it progresses. It was for this reason that the word “reasonable” was inserted in the statute, permitting the losses occurring by reason of obsolescence to be spread over the years between the beginning and end of the process.
In the light of the definitions of obsolescence set forth above, we perceive the purpose of the statute, granting a reasonable allowance by way of obsolescence to the taxpayer, to be the allowance to the taxpayer of deductions based upon plant, machinery or equipment becoming inutile due to changing competitive conditions, improvements resulting from invention, or from prohibitory statutes. The object of the statute is to permit a taxpayer to regain capital invested by him in an enterprise, the equipment, machinery or material in which his capital has been placed becoming obsolete, because time itself brings improvements or changed conditions. To put the matter shortly, obsolescence may be claimed when machinery or a plant suffers loss in use not because of action or lack of it upon the part of the taxpayer, but because of the effect of general conditions over which he has no control.
We think it is apparent that the loss claimed by the taxpayer cannot be brought within any established definition of obsolescence. The title plant did not lose its usefulness because of changing economic conditions or by reason of any circumstances over which the taxpayer lacked control. Such usefulness as was lost throughout the taxable year in question was lost because of the failure of the taxpayer to keep the plant’s records up to date. To hold that the plant became obsolete within the taxable year is contrary to the facts. True, it was not as useful at the end of the taxable year as at its be ginning, but to conclude that a title plant created between the years 1886 and 1887, steadily added to and kept up to date until October, 1927, loses its usefulness in the •following twelve months because of a failure to add current notations to its records is contrary to reason. There is no adequate evidence of record in the case at bar to sustain such a view. Indeed, there is express evidence to the contrary in view •of the fact that the plant in question was offered for sale for the sum of $1,000,000-some months after November 1, 1927. Moreover,' we think that in a true sense the deterioration suffered ‘by the plant in the period from November 1, 1927, to October 31, 1928, was physical deterioration, and as such may not be claimed as obsolescence within the definition set forth in United States Cartridge Co. v. United States, supra. The loss suffered by the appellee within the taxable year is more closely allied to depreciation, which, continued from year to' year thereafter, might result upon some future date in a complete loss of valúe- in the plant. Such complete loss would occur when the cost of bringing the plant to date would exceed the value of the existing records in the plant. This is all the more apparent when it is observed as was testified to at the trial in the case at bar that a complete title insurance plant consists of the following parts: first, abstracts of public records, including deeds, mortgages, sheriff’s assignments, releases and so forth, indexed, plotted and located on plans of the City as subdivided into sections and blocks; and, second, separate abstracts of title, searches and opinions in each matter for which the title company had issued its title insurance policy or obligation of a similar nature.
In our opinion the circumstances of the case at bar indicate the abandonment of a capital asset by the appellee. The situation presented is analogous to that which would occur if a public utility - company with adequate power facilities of its own bought out a competing utility operating in the same territory, and thereafter, making no use of the power plant purchased and not maintaining it in running order, claimed its value, less scrap value, by way of obsolescence within the taxable year after its acquisition. It is obvious that obsolescence cannot be maintained upon such a basis.
It is not necessary for us to pass upon the question of whether or not the deduction here sought might be available to the appellee upon the theory of the abandonment of a capital asset. The appellee cannot claim the deduction upon such a ground because it appears that the claim for refund asserted by the appellee was asserted by it solely upon the ground of obsolescence. In the suit at bar therefore the appellee might be permitted to take only the deduction which it claimed. Such is the basis upon which the United States consents to be sued. See Rock Island, Arkansas & Louisiana R. R. Co. v. United States, .254 U.S. 141, 41 S.Ct. 55, 65 L.Ed. 188; Reid v. United States, 211 U.S. 529, 538, 29 S.Ct. 171, 53 L.Ed. 313; Munro v. United States, 303 U.S. 36, 41, 58 S.Ct. 421, 82 L.Ed. 633. We may state, however, that the circumstances of the case at bar seem to us to be closely analogous to those presented in Newspaper Printing Co. v. Commissioner, 3 Cir., 56 F.2d 125, decided by this court.
In conclusion we state that the amount of the deduction allowed to the taxpayer by the court below seems to us to be not supported by the evidence. Two experts, testifying on behalf of the appellee, stated that the value of the title plant as of March 1, 1913, was between $1,000,000 and $1,250,000. Yet it was carried upon the books of the Land Title and Trust Company in the sum of $275,000, which at the time of the merger was increased to $800,-000. Within some months following the merger a price was set upon the plant of $1,000,000. None the less it was found as a fact by the court below that the loss to the appellee by way of the obsolescence of the plant, less scrap value, was $875,000. This is $75,000 more than the value at which the plant was taken into the merged corporation and more than three-times the value at which the plant was carried upon the books of the constituent company just prior to the merger.
The judgment of the court below is reversed and the cause is remanded with the direction to enter judgment in favor of the defendant-appellant.
The testimony of the title officer of Land Title and Trust Company is illuminating. He testified:
“A. The only use made of them (the records in the plant) in October, that I know of, was that the block plan books, which were sent down first, were used as a means of ascertaining what insurances were involved in connection with the forthcoming Sheriff sales of November, it having been the custom to look at such insurances to make sure that the Sheriff sales were not upon any liens which affected the title as of the date that we had insurance — to any such properties. And outside of that I have no personal knowledge of what reference may have been made, from time to time, after the first of November, when the new company went into operation, what references may have been made from time to time to that plant.
“Q. You do know that they looked up some things from time to time? A. But I believe, from time to time, there has been, very occasionally, a check-up of some information from material in the plant to save a visit to City Hall.
“Q. Did they increase or decrease after the plant was stored there? A. I think that it decreased as the time went by, so that there was practically little or no use made of it by the end of the year following the merger.”
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_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.
LOCAL 1104, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, C. I. O. an Unincorporated Association, Appellant, v. LOCAL 1104, UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA (UE), etc., et al.
No. 14818.
United States Court of Appeals Eighth Circuit.
March 3, 1954.
Robert A. Roessel, Ruth Boxdorfer and Keith M. Brownell, St. Louis, Mo., for appellants.
Morris J. Levin, James R. Blumenfeld and D. J. Sullivan, St. Louis, Mo., for appellees.
PER CURIAM.
Appeal from District Court dismissed, on petition of appellant, joined in by appellees.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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 of America, Appellee, v. Sayed Ali QAMAR, Defendant-Appellant.
No. 579, Docket 81-1331.
United States Court of Appeals, Second Circuit.
Argued Jan. 26, 1982.
Decided Feb. 22, 1982.
Anne C. Feigus, New York City (Ronald P. Fischetti, New York City, of counsel), for defendant-appellant.
Peter A. Norling, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Jane Simkin Smith, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y., of counsel), for appellee.
Before MESKILL and CARDAMONE, Circuit Judges, and HOLDEN, District Judge .
The Honorable James S. Holden, Chief Judge of the United States District Court for the District of Vermont, sitting by designation,
MESKILL, Circuit Judge:
Sayed Ali Qamar challenges a judgment entered after a jury trial in the United States District Court for the Eastern District of New York, Sifton, J., convicting him of one count of conspiracy to import hashish, 21 U.S.C. § 963 (1976). Qamar was acquitted on a second count, possession of hashish with intent to distribute, 21 U.S.C. § 841(a)(1) (1976); 18 U.S.C. § 2 (1976), and the jury failed to return a verdict, resulting in a mistrial, on a third count, importation of hashish, 21 U.S.C. §§ 952(a), 960(a)(1) (1976); 18 U.S.C. § 2 (1976). Qamar was sentenced to four years imprisonment. He is presently free on bail pending the disposition of this appeal. We affirm his conviction.
BACKGROUND
The sole issue on this appeal relates to the district court’s admission into evidence of “death threat” testimony. We briefly recount the prosecution and defense cases to provide the background against which this testimony was proffered.
The Government’s Case
The government called four witnesses in its case in chief. Shamim Adil testified that he and Qamar began discussing the possibility of importing hashish from East Pakistan in 1976. Adil recalled that Qamar knew how to smuggle the contraband out of Pakistan, but had no way to bring it safely into the United States. Adil later discussed hashish importation with Lakhi Uttam, a business associate and the owner of Asia Imports Company in Manhattan. In 1978, Adil introduced Uttam to Qamar. According to Adil, Uttam told Qamar that he could get hashish safely through United States Customs. Adil, Qamar and Uttam thereupon agreed to import hashish by air, to sell it, and to divide the proceeds evenly.
Adil stated that in the spring or summer of 1978, Qamar left for Pakistan to arrange a shipment of hashish. Upon his return, Qamar told Adil that the shipment had left Pakistan and gave Adil the airway bill to pass on to Uttam. Qamar later told Adil that the shipment had been lost.
Uttam testified under a plea agreement with the government that he was engaged in the importation of goods from India. Uttam corroborated Adil’s testimony and provided details of the scheme to import hashish. Uttam stated that he suggested a plan to conceal the contraband in cartons of T-shirts and told Qamar that by retrieving the shipments after the customs officers went off duty, the importer could take most of the cartons away, leaving just one of every ten or twenty behind for customs inspection the next day. By coding the .cartons, the importer could be sure that the cartons left for inspection did not contain hashish.
Uttam further testified that after successfully importing a test shipment of ten cartons of T-shirts, two containing a total of fifteen to twenty pounds of hashish, and a larger shipment containing approximately 165 pounds of hashish, the parties attempted another 165 pound shipment. This time, however, customs officials intercepted the hashish. When Uttam first informed Qamar of the seizure, Qamar was very upset and did not believe Uttam. However, Qamar later confirmed the seizure.
According to Uttam, in June 1980 he and Qamar set out to import more hashish, this time concealing it within a cargo of rugs on the steamer Hellanic Valor. When the first shipment of rugs arrived, Uttam’s trucker, Gurdip Hari, informed him that customs officials had opened it. Uttam rejected the delivery and informed Qamar of the customs inspection. Qamar accused Uttam of lying and unsuccessfully attempted to have the shipment delivered to other locations. Qamar contacted Uttam several times, finally coming to Uttam’s office where he was later joined by two armed men.
Uttam testified that at the meeting in his office, Qamar asked what had happened to the hashish. Uttam told Qamar that it had been confiscated. Qamar’s associates then pointed their guns at Uttam and his shipping clerk, Abraham Benzaquen, and continued to inquire into the whereabouts of the hashish. The men assaulted Uttam, telling him that “[tjhis is your last chance” to explain the disappearance of the hashish. They then threatened to kill Uttam and his family, telling Uttam that they knew where he lived and where his daughter waited for .a school bus. After Uttam persisted in asserting that the hashish had been seized, Qamar forced Uttam to sign an agreement to pay $50,000 per week until the $3 million allegedly lost in the disappearance of the hashish was fully paid.
Abraham Benzaquen corroborated portions of Uttam’s testimony, most importantly the account of the meeting at which Qamar and his associates threatened Uttam. The government’s fourth witness, Customs Inspector Frank Monroig, testified that on December 19, 1980 he and fellow inspectors seized a shipment of hashish concealed within a cargo of cotton floor coverings on the Hellanic Valor at the piers in Brooklyn.
The Defense Case
Qamar testified that he operated his own business, Kay Travel International, and was acquainted with Adil. He stated that Adil introduced him to Uttam, telling him that Uttam knew many people who were potential customers for Qamar as travelers to India and Pakistan. Qamar claimed to have traveled to Pakistan to tend to family business and to investigate the importation of surgical equipment for Uttam. Qamar testified that he later gave Uttam $5,000 to invest in silver which was never delivered. Qamar denied discussing hashish dealings with Uttam and denied threatening Uttam and his family.
Qamar called four other witnesses, two as character witnesses and two to refute details of the government’s proof.
DISCUSSION
Qamar’s sole claim on appeal is that the prejudicial effect of Uttam’s testimony of death threats so outweighed its probative value that it resulted in an unfair trial. This Court has several times reviewed claims that the prejudicial effect of death threat evidence rendered it inadmissible. In no case have we reversed a conviction on this ground. Nevertheless, as this case illustrates, defendants have continued to assert that death threat testimony is governed by special rules and should be admitted only in exceptional circumstances. This opinion should put this unsound theory to rest.
The starting point of our inquiry is Federal Rule of Evidence 403, which provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Our most recent and most comprehensive treatment of the admissibility of death threat evidence under Rule 403 appears in United States v. DeLillo, 620 F.2d 939, 943-46 (2d Cir.), cert. denied, 449 U.S. 835, 101 S.Ct. 107, 108, 66 L.Ed.2d 41 (1980), where we stated:
Appellants argue that our prior cases establish a principle that threat evidence cannot be introduced by the government except under “exceptional circumstances”, which can be characterized as fair response to affirmative actions by the defense which “invite introduction of the threat evidence,” United States v. Malizia, 503 F.2d 578, 581 (2d Cir. 1974). It is true that the fact patterns of some of our cases in this area fit this characterization. However, at no point has this Circuit ever held that the normal processes of Fed.R. Evid. 403 balancing must be supplemented by an additional, ironclad requirement that the defense “invite” threat testimony.
Id. at 944. The DeLillo opinion proceeded through a case-by-case review of this Circuit’s recent death threat cases, see United States v. Check, 582 F.2d 668, 684-86 (2d Cir. 1978); United States v. Panebianco, 543 F.2d 447, 454-55 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977); United States v. Rivera, 513 F.2d 519, 528 (2d Cir.), cert. denied, 423 U.S. 948, 96 S.Ct. 367, 46 L.Ed.2d 284 (1975); United States v. Malizia, 503 F.2d 578, 580-82 (2d Cir. 1974), cert. denied, 420 U.S. 912, 95 S.Ct. 834, 42 L.Ed.2d 843 (1975); United States v. Cirilio, 468 F.2d 1233,1240 (2d Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973); United States v. Briggs, 457 F.2d 908, 910-11 (2d Cir.), cert. denied, 409 U.S. 986, 93 S.Ct. 337, 34 L.Ed.2d 251 (1972), and concluded:
All of our cases decided since the adoption of the Federal Rules of Evidence recognize that the central issue when threat testimony is sought to be introduced is the balance of probativeness and prejudice required by Fed. R. Evid. 403.
620 F.2d at 946.
Qamar reads DeLillo to allow admission of death threat evidence only to impeach. Accordingly, he argues that the trial court acted prematurely in ruling the threat testimony in this case admissible pri- or to “a point in time when the government could properly have resorted to its introduction for impeachment purposes.” Brief for Appellant at 14-15. Qamar relies on the following passage in DeLillo:
The question posed by the unusual fact pattern in the case at bar, then, reduces itself to whether or not the posture of testimony to the time the government sought to introduce evidence of Andrew DeLillo’s threat was tantamount to impeachment of a witness.
620 F.2d at 945.
Read in isolation, this passage arguably supports the view that death threat evidence is admissible only for impeachment purposes. However, when we consider it in the light of the entire DeLillo opinion, we see the passage not as a statement of a general rule, but as an application of the law to the facts of that case. In the paragraph immediately following that containing the quote above, the DeLillo Court wrote:
The importance of our concern with the government’s need to introduce evidence of threats in order to help the jury resolve a credibility issue is a reflection of the fact that one element of this balance is probativeness. Of course, the balance between probativeness and prejudice will differ according to the purposes for which a piece of evidence is to be admitted. A death threat may be of very strong probativeness when it is directed against a witness and what is sought to be proved is that the witness’ testimony was affected by it; and the prejudice is likely to be small because the jury will be instructed not to consider the threat on the question of the defendant’s overall guilt. The prejudice is further reduced when, as in this case, the person who made the threat is not a defendant. There is a set of factors — the purpose for which the threat is sought to be admitted, the identity of the person making the threat — that a judge balancing under Fed.R.Evid. 403 must consider (although we do not mean these examples to be exclusive). We can say, and so hold, that the circumstances of which side makes what arguments and whose witnesses are involved, are irrelevant to this balancing, except insofar as they overlap with one of the factors mentioned above.
620 F.2d at 946. Thus, the DeLillo Court recognized that death threat evidence should be subjected to the same Rule 403 balancing test as other relevant evidence. If the threat is otherwise admissible, it should be allowed into evidence unless its prejudicial effect outweighs its probative value.
As our past decisions indicate, the potential prejudice from death threats may be great. E.g., United States v. Check, 582 F.2d at 685; United States v. Malizia, 503 F.2d at 581. Thus, the government must have an important purpose for the evidence in order to satisfy the Rule 403 balancing test. Trial courts applying standard Rule 403 analysis may, therefore, exclude death threats more frequently than other evidence. We stress, however, that death threats, just as other potentially prejudicial evidence, are to be judged by “the normal processes of Fed.R.Evid. 403 balancing.” United States v. DeLillo, 620 F.2d at 944. The trial court’s “exercise of broad discretion will not lightly be disturbed[,]” United States v. Williams, 596 F.2d 44, 50 (2d Cir.), cert. denied, 442 U.S. 946, 99 S.Ct. 2893, 61 L.Ed.2d 317 (1979), because it is in a better position to evaluate both the probativeness and the prejudicial effect of evidence.
Applying these principles to the facts of the instant case, we find no abuse of discretion in the admission of evidence that Qamar issued death threats against Uttam and his family. A determination of the credibility of witnesses was central to the jury’s determination of guilt or innocence. Uttam, testifying for the government, and Qamar, testifying for himself, rendered wholly inconsistent accounts of their relationship. Qamar claimed that his association with Uttam was strictly legitimate. Uttam recounted their plan to smuggle hashish concealed within shipments of T-shirts and rugs. Thus, the jury clearly had to decide which witness it believed. The court ruled that the threat evidence was useful to explain the demean- or of Uttam, who “testified in an almost inaudible voice, speaks quickly . . . [and] displays on the stand some tendencies to want to get out of here and to get the questioning over with.” App. at 92. In addition, the court opined that the threat would be likely to make a lasting impression on those present when it was made and would therefore explain Uttam’s vivid recollection of the events surrounding the threat. Moreover, the court believed that any attempt to excise the threat from Uttam’s account of the meeting during which it was made would result in confusing testimony riddled with suspicious gaps that would cause the jury to doubt Uttam’s veracity. The government adds that without the threat evidence, it would have been severely impaired in its attempt to use another witness, Benzaquen, to corroborate Uttam’s testimony. Since Benzaquen was present when the threats were made but was privy to few if any other relevant incidents, his account of the meeting at which the threats were made, because it so closely paralleled Uttam’s testimony, was both strongly corroborative and irreplaceable.
The court limited the potential prejudice from the death threats by admonishing the jury to consider the threat evidence only on the issues of the identity of the actors and the credibility of the witnesses. In addition, we note that the jury convicted Qamar on only one count of a three-count indictment. The jury’s acquittal on a second count and its inability to agree on a third count belie the suggestion that the death threat testimony so inflamed the jurors’ passions that Qamar was denied a fair trial.
The record in this case indicates that the trial court implemented Rule 403 by carefully weighing the prejudicial effect of the death threat evidence against its probative value, and by stating cogent reasons for its decision to admit the testimony. We find no abuse of discretion.
The judgment of conviction is affirmed. The mandate shall issue forthwith.
. Uttam’s testimony relating to this meeting in his office was first introduced in the absence of the jury. The court then permitted it to be repeated in the jury’s presence.
. Actually, only Panebianco and Check were decided between Fed.R.Evid. 403’s effective date in 1975 and our 1980 decision in DeLillo. Both of these cases clearly employ the balancing test to measure the admissibility of challenged death threat testimony. In Panebianco the Court stated:
it was not an abuse of discretion for Judge Bonsai to conclude that the rehabilitative value of the death-threat testimony outweighed any unfair prejudice to [the defendant].
543 F.2d at 455. Similarly, the Check Court stated:
evidence, though relevant, may sometimes have to be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice [to the defendant].” Fed.R. Evid. 403.
582 F.2d at 685.
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_usc1sect
|
1983
|
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 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Louis R. HARPER, Jr., et al., Appellees, v. Joseph M. KLOSTER and Stanley C. Leonard, Appellants. Louis R. HARPER, Jr., et al., Appellees, v. Giffen B. NICKOL et al., Appellants. Louis R. HARPER, Jr., et al., Appellants, v. MAYOR AND CITY COUNCIL OF BALTIMORE, a municipal corporation, et al., Appellees.
Nos. 73-1853 to 73-1855.
United States Court of Appeals, Fourth Circuit.,
Argued Aug. 15, 1973.
Decided Oct. 15, 1973.
H. Thomas Howell, Baltimore, Md. (Norman P. Ramsey, Richard T. Sampson, and Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellants in No. 73-1853.
Kenneth L. Johnson, Baltimore, Md. (Howard, Brown & Williams, Baltimore, Md., Jack Greenberg, William L. Robinson and Jeffrey A. Mintz, New York City, on brief), for appellants in No. 73-1855 and for appellees in Nos. 73-1853 and 73-1854.
Paul D. Bekman, Baltimore, Md. (William H. Engelman and Kaplan, Heyman, Engelman & Belgrad, Baltimore, Md., on brief), for appellants in No. 73-1854.
George L. Russell, Jr., City Sol., Baltimore (Gerald S. Klein, Asst. City Sol., Baltimore, on brief), for appellees in No. 73-1855.
Before WINTER, FIELD and WIDENER, Circuit Judges.
WINTER, Circuit Judge:
. Four black employees (Harper, et al.) of the Baltimore City Fire Department brought a class action under 42 U.S.C.A. §§ 1981, 1983 and 1988; 28 U.S.C.A. § 2201; and the thirteenth and fourteenth amendments, against Baltimore City and the members of the Board of Fire Commissioners and the Civil Service Commission, in their representative capacity, * to obtain declaratory and injunctive relief against allegedly racially discriminatory practices of the defendants in the appointment and promotion of firemen and various officers of Baltimore City’s fire department. Twenty-six white firemen intervened in the case.
Finding pronounced past racial discrimination, lesser current racial discrimination and significant consequences of past and current racial discrimination, the district court granted substantial relief. Harper v. Mayor and City Council of Baltimore, 359 F.Supp. 1187 (D.Md.1972). It declared invalid and enjoined continued use of the type of written entrance examination which was currently in use for initial appointment and for promotion. It also prescribed how acceptable forms of written examinations could be developed. Because it found that a higher percentage of blacks resided in Baltimore City than the surrounding counties, which had become havens for white flight, it required that city residents be given preference in hiring over non-city residents so long as there were a sufficient number of city residents to fill vacancies. It invalidated existing promotional lists, and it restricted the use of existing eligibility lists for initial hiring. It invalidated seniority for promotions to certain levels for years of past service, accumulated during periods that it found that racial discrimination had been rampant; and it required a reduction of the “time in grade” requirements for promotion to various levels. 359 F.Supp. at 1218-1219.
I Following the district court’s main decision (May 2, 1972), a group of black ’and white non-residents of Baltimore City (Nickol, et al.), who learned on May 12, 1973, that they had passed the firefighters entrance examinations and would be eligible for appointment as firemen but for the district court’s May 2, 1973 decision and the place of their residence, sought to intervene in the proceedings. Leave to intervene was denied by the district court in an oral ' opinion rendered after a hearing.
Plaintiffs, the intervenors, and the would-be intervenors have appealed. No appellant questions the correctness of the district court’s findings of fact, but each raises legal questions.
Plaintiffs contend that the district court should have granted a more drastic remedy to cure past and present racial discrimination and its present discriminating consequences. Specifically, they advocate that the district court fix minimum quotas for black officers of the fire department, the quotas to be achieved by a date certain. With a complete lack of specificity, they contend that the district court “should have completely proscribed all aspects of . [the seniority system] that retard promotions” and that “[s]ince time in grade was not shown to be job related, it should not be used against the victims of discrimination who otherwise demonstrate (sic) the ability to successfully perform the job.” Finally, they argue that there was error in the district court's failing to retain jurisdiction until racial discrimination and the consequences of past racial discrimination have been fully eradicated,
i The intervenors contend that the district court’s invalidation of existing eligibility lists for promotion was error— in sum, that the relief granted by the district court was too drastic. Their contention is grounded upon the dual assertions that the promotional lists were prepared without resort to racially discriminatory criteria and the reduction of “time in grade” requirements for promotion should not have been applied, retroactively (they claim), to invalidate),' current promotional eligibility lists. Í
The would-be intervenors contend that’ they should have been allowed to intervene and to relitigate the case, at least to the extent that it concerned the eligibility of non-residents of Baltimore City for appointment to the fire department.
After the case was argued, Baltimore^ City filed a motion to dismiss the appeals and to vacate the district court’s judgment, on the ground that under City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), the city could not be sued under 42 U.S.C.A. § 1983 by a complaint seeking equitable relief, since it was not a “person” within the meaning of that statute.
We conclude that the appeals are lacking in merit. While we conclude that the motion to dismiss is well taken as to Mayor and City Council of Baltimore, a municipal corporation, the relief decreed by the district court may be fully effective as to the other defendants, and we do not think that Kenosha requires dismissal as to them. Accordingly, except for dismissal of the City of Baltimore as a defendant, we affirm the orders appealed from.
I.
We reject plaintiffs’ argument that the district court should have fixed racial quotas for various categories of employees of the fire department and prescribed a minimum time schedule for those quotas to be met. We agree with the district court’s discussion and conclusion in regard to this issue as set forth in 359 F.Supp., pages 1213-1215 of its opinion, and more need not be said. We agree also that this is not a case in which it would be appropriate for the district court to continue jurisdiction. The district court’s remedies to eradicate present discrimination and the current consequences of discrimination are complete in and of themselves. Counsel for defendants have assured the court that full access to all relevant data and statistics, short of the questions on a particular examination before the examination is administered, to determine if defendants are in compliance with the district court’s decree, will be available to plaintiffs and other interested parties at all times within regular business hours. As the district court correctly observed, it lacks the authority to operate the Baltimore City fire department, although it does have “the responsibility to see that the procedures for hiring and promoting firemen are within the bounds proscribed by applicable constitutional and statutory provisions.” 359 F.Supp. at 1213. We think that the district court did not abuse its discretion when, in accommodating these conflicting interests, it concluded not to retain jurisdiction.
II.
We think that the voiding of existing eligibility lists for promotion was proper, notwithstanding intervenors’ argument to the contrary.
The district court found, and its findings are not only amply supported but unchallenged, that the “time in grade” requirements, seniority and efficiency ratings — all components of promotional lists — had the potential of adverse effect on blacks and that this potential amounted to a denial of equal protection of the laws. 359 F.Supp. at 1211-1212. Under such circumstances, we cannot say that, given the breadth of the district court’s discretion to fashion equitable relief, the district court abused its discretion in voiding existing promotional lists forthwith rather than to let them expire by the passage of time so that certain of the intervenors, all of whom are white, could be promoted to higher classifications before there could be corrective alteration of the promotional lists. Intervenors argue strenuously that they are being unfairly denied promotions to which they are entitled, but we rejected this argument in Robinson v. Lorillard Corporation, 444 F.2d 791, 800 (4 Cir. 1971), cert, dis., 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655, where we approved modification of an offensive seniority system, saying “Where some employees now have lower expectations than their coworkers because of the influence of one of these forbidden factors [i e., race, color, religion, sex or national origin], they are entitled to have their expectations raised even if the expectations of others must be lowered in order to achieve the statutorily mandated equality of opportunity.”
III.
We agree with the district court that, for the reasons set forth in its oral opinion, would-be intervenors’ application to intervene in the proceedings was not timely. Rule 24(a), F.R.Civ.P. It follows that denial of leave to intervene was proper.
The would-be intervenors wish to litigate further the propriety and validity of the aspect of the district court’s decree giving preference to residents of Baltimore City in the initial appointment of firefighters. As the district court stated in denying leave to intervene, “they may seek to bring a separate action on the narrow issue involved which would not require a full review and consideration of the testimony in the five week trial.” We agree. There had been a five week, well publicized trial and the interests of the would-be intervenors had apparently been adequately represented. Additionally, throughout most of the period of the litigation, as well as the trial itself, Baltimore City had been preliminarily enjoined from filling certain positions in its complement of firefighters. The effect of permitting intervention would have continued that disability for even longer. Manifestly, the public interest in efficient, effective firefighting services requires that would-be intervenors be heard in a separate proceeding.
IV.
In City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), the Supreme Court flatly held that a municipal corporation was not a “person” within the meaning of 42 U.S. C.A. § 1983 when equitable relief under that statute was sought. Earlier, it had held in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that a municipal corporation was not a “person” within the meaning of 42 U.S. C.A. § 1983 when damages under that statute were sought. In Monroe, never-, theless, the Court held that § 1983 applied to municipal officers and employees when damages were sought. See also Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). We see no reason to give Keno-sha any wider application.
In the instant case, the district court apparently exercised its jurisdiction under § 1983, although it may well have been exercising federal question jurisdiction under the thirteenth and fourteenth amendments or jurisdiction under 28 U.S.C.A. § 2201. If it exercised jurisdiction on a basis other than § 1983, jurisdiction over the City of Baltimore may be sustainable, as proper in the first instance or under a theory of pendent jurisdiction, because Monroe does not purport to immunize municipal corporations from suit in such instances. See, however, Moor v. County of Alame-da, supra. But we need not explore these possibilities, because there have been named as defendants the individuals who constitute the fire board, the body which makes appointments and promotions, and the Civil Service Commission, the body which recruits, tests, prepares and publishes eligibility lists for appointment and promotion. Monroe holds that jurisdiction attaches as to them and we do not think that Kenosha is to the contrary. The decree of the district court will be just as effective if it applies only to the defendants, excluding Baltimore City, a municipal corporation, as if Baltimore City were also a defendant.
To comply with Kenosha, we must direct the district court to dismiss Baltimore City from the proceedings. In all other respects, the district court’s orders are affirmed.
Modified and 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 42? Answer with a number.
Answer:
|
songer_appsubst
|
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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CONTINENTAL ILLINOIS BANK & TRUST CO. v. UNITED STATES and three other cases.
Nos. 4872-4875.
Circuit Court of Appeals, Seventh Circuit.
May 26, 1933.
William B¡ Hale, Calvin F. Selfridge, and George Fiedler, all of Chicago, 111., for Continental Illinois Bank & Trust Co. et al.
Dwight H. Green, U. S. Atty., of Chicago, 111. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and T. H. Lewis, Jr., Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for the United States.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
SPARKS, Circuit Judge
(after stating the facts as above).
It is first contended by appellants that section 802(a) of the Revenue Aet of 1924, supra, is violative of article 1, § 8, el. 1, of the Constitution of the United States which provides that all duties, imposts and excises shall be uniform throughout the United States. It is admitted that such required uniformity is geographical and not intrinsic. It is not contended by appellants that the alleged lack of geographical uniformity appears upon the face of the- statute. They argue, however, that it arises by virtue of a decision of the United States Supreme Court in Crooks v. Harrelson, 282 U. S. 55, 51 S. Ct. 49, 75 L. Ed. 156, whieh held that a decedent’s real estate under the laws of Missouri was not subject to the payment of expenses of administration and for that reason could not be included in the gross estate of a resident of that State for the purpose of computing estate taxes. Hence appellants insist that the taxes laid under the section referred to are not geographically uniform because the enactment does not include a decedent’s real estate in Missouri.
With this contention we are not in accord. In Poe v. Seaborn, 282 U. S. 101, at page 117, 51 S. Ct. 58, 61, 75 L. Ed. 239, the Court said,
“ * * * Differences of state law, whieh may bring a person within or without the category designated by Congress as taxable, may not be read into the Revenue Act to spell out a lack of uniformity.”
In Knowlton v. Moore, 178 U. S. 41, at. page 106, 20 S. Ct. 747, 773, 44 L. Ed. 969, the subject of geographical uniformity was quite exhaustively treated, and Mr. Justice White there speaking for the Court used the following language:
“Though there is a provision that all duties, imposts, and excises shall be uniform— that is, to be laid to the same amount on the same articles in each state — yet this will not prevent Congress from having it in their power to eause them to fall very unequally and much heavier on some states - than on others, because these duties may be laid on articles but little or not at all used in some other states, and of absolute necessity for the use and consumption of others; in whieh case, the first would pay little or no part of the revenue arising therefrom, while the whole or nearly the whole of it would be paid by the last. * * ’ * ”
In Patton v. Brady, Executrix, 184 U. S. 608, 22 S. Ct. 493, 46 L. Ed. 713, the tax assessed was an excise on tobacco whieh was held valid. The Court quoted with approval the following language from the Head Money Cases, 112 U. S. 580, 5 S. Ct. 247, 252, 28 L. Ed. 798, “ ‘The tax is uniform when it operates with the same force and effect in every place where the subject of it is found.’ ”
In Florida v. Mellon, 273 U. S. 12, 47 S. Ct. 265, 266, 71 L. Ed. 511, it was contended that because the State of Florida did not impose an inheritance tax, the Federal Estate Tax Act was unconstitutional in that it allowed as a credit against the federal estate tax the inheritance taxes paid to the states, and that resident decedents of Florida were thus treated differently from decedents who were residents of other states whieh had inheritance tax laws. The Court held the act valid, saying,
“The contention that the federal tax is not uniform, because other states impose inheritance taxes while Florida does not, is without merit. Congress cannot accommodate its legislation to the conflicting or dissimilar laws of the several states nor, control the diverse conditions to .be found in the various states whieh necessarily work unlike results from the enforcement of the same tax. All that the Constitution (article 1, § 8, el. 1) requires is that the law shall be uniform in the sense that by its provisions the rule of liability shall be alike in all parts of the United States.”
In Phillips v. Commissioner, 283 U. S. 589, 51 S. Ct. 608, 613, 75 L. Ed. 1289, the Court said, in state laws; but such variations do not infringe tbe constitutional prohibitions against delegation of tbe taxing power or tbe requirement of geographical uniformity.” (Citing Florida v. Mellon, supra; Crooks v. Harrelson, supra; Poe v. Seaborn, supra; and comparing Head Money Cases, supra, and Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311, 37 S. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845.
“The extent.and incidence of federal taxes not infrequently are affected by differences
If, when tbe Federal Estate Tax Act was enacted, tbe laws of every state bad provided that all property of each decedent, real or personal, should be subject to tbe payment of tbe charges against bis estate and tbe expenses of administration and also be subject to distribution as part of bis estate, tbe question of geographical uniformity would not have arisen. But if tbe contention of appellants were sound, then tbe subsequent enactment of any state to tbe effect that resident decedents’ real estate should not be subject to tbe charges, or expenses of administration, or to distribution, as provided in tbe federal act, would render tbe federal act unconstitutional for lack of geographical uniformity. In other words, an admittedly constitutional federal enactment would be rendered unconstitutional by a subsequent state enactment. The time of such state enactment is not of importance, and tbe eases cited do not support appellants’ contention.
Appellants recognize tbe principle that without offense to tbe constitution, an excise may be based directly upon and related directly to state laws where those laws are of tbe essence of the thing taxed. See Flint v. Stone Tracy Co., 220 U. S. 107, 31 S. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312. They contend, however, that tbe classification in tbe federal statute is not of tbe essence of tbe thing taxed. In this we think they are in error. The thing taxed is tbe transfer of the certain net estates. Tbe limitation is to tbe extent of tbe interest of tbe decedent in such estates which is subject to the payment of charges against bis estate and the expenses of its administration, and which is subject to distribution as part of bis estate. Tbe basis of tbe classification is tbe relation of tbe property to tbe estate, and it is of tbe essence of tbe thing taxed.
It is contended by appellants that tbe trial court erred in bolding that real estate in Illinois was properly included in tbe gross estate. This question was decided by this court adversely to their contention, March 10, 1933, in Ee Estate of Edward M. Marble (National Bank of the Republic of Chicago v. Commissioner of Internal Eevenue), 64 F.(2d) 745.
Cross-appellant contends that tbe trial court erred in permitting tbe Lawson estate to amend its petition, and in rendering judgment thereon for that estate in tbe sum of $9,165.19. It is disclosed by tbe record that tbe third ground of recovery was based on tbe alleged fact that there was included in tbe gross estate of Victor F. Lawson certain real estate which belonged to Iver Norman Lawson. Appellant bad in its claim for refund attacked tbe validity of tbe entire assessment, and under one paragraph of tbe claim bad asserted as a basis for such invalidity that tbe Commissioner bad wrongfully included “certain real estate and personal property” which belonged to Iver Norman Lawson. In tbe specific description of such property in tbe claim, however, only two tracts of real estate were described. By tbe order allowing tbe filing of the amended petition, within tbe period within which appellant might have filed an amended claim for refund, appellant was permitted to enlarge tbe description by including a third parcel. It is cross-appellant’s contention now that no recovery can be bad as to such third parcel in view of tbe fact that its specific description was omitted from tbe claim for refund. We consider tbe principles laid down in United States v. Memphis Cotton Oil Co., 288 U. S. 62, 53 S. Ct. 278, 77 L. Ed. 619; as determining this question adversely to such contention.
Judgment affirmed.
"Tlie Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide tor the common Deience and general Welfare of the United States; but all Duties, Imposts ' and Excises shall be uniform throughout the United States.”
Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_appel1_1_3
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
UNITED STATES FIDELITY & GUARANTY CO. v. PIERSON et al.
No. 11104.
Circuit Court of Appeals, Eighth Circuit.
July 1, 1938.
Jesse Reynolds, of Clarksville, Ark., for appellant.
G. O. Patterson, of Clarksville, Ark. (R. W. Robins, of Conway, Ark., on the brief), for appellee Pierson.
Hays & Wait, of Russellville, for appel-lee Shrigley,
Before GARDNER, SANBORN, and THOMAS, Circuit Judges.
GARDNER, Circuit Judge.
Appellant brought this suit seeking relief under the Federal Declaratory Judgment Act, 28 U.S.C.A. § 400. We shall refer to the parties as they were designated in the lower court.
The bill alleged diversity of citizenship and a sufficient amount involved to confer on the lower court jurisdiction. It appears from the allegations of the complaint that on November 25, 1931 plaintiff issued to defendant Guy Shrigley a policy of insurance by which plaintiff agreed that it would pay the assured all sums, not exceeding $25,000, which he should become liable to pay as damages imposed upon him by law for bodily injury, including death at any time resulting therefrom, accidentally sustained by any person or persons, if caused by the ownership, maintenance or use of the automobile of assured; that it would defend the assured against any suit seeking damages on account of bodily injury or property damage, even if such suit were groundless, false, or fraudulent; that irrespective of the limit of its liability it would pay all costs taxed against assured in any such defended suit, all expenses incurred by the company, and all interest accruing after entry of judgment until the company should pay, tender or deposit in court the amount of the judgment, not exceeding the limit of its liability; that bankruptcy or insolvency of the assured should not relieve plaintiff of any of its obligations under the policy; that plaintiff should have the right to settle any claim or suit and to make such investigation or negotiation as might be deemed expedient by it; that in April, 1933, the defendant L. H. Pierson commenced an action in the Circuit Court of Johnson County, Arkansas against the assured; that in that action Pierson alleges that his wife received bodily injuries caused by the operation of the automobile of the assured, at a time when the policy was in force, by reason of which she was permanently disabled to perform the ordinary functions of a wife or to attend to the ordinary duties of the household, to his damage in the sum of $10,000.
In the instant suit, it is alleged that the damages claimed in the state court action are not covered by the policy; that there is no duty on plaintiff’s part to defend the action for the reason that the damages sought are not for “bodily injuries;” that it is imperative that it be determined that plaintiff is under no obligations to assured under the terms of the policy to defend said action or to pay any judgment that may be recovered against assured; that a controversy exists with reference to the rights, duties and obligations of plaintiff under the policy in reference to what protection, if any, the policy affords the assured or inures to the benefit of the defendant Pier-son; that declaratory judgment is asked, construing the policy and determining that it does not apply to or protect the assured or inure to the benefit of the defendant Pierson in respect to the loss of services and consortium of Pierson’s wife; that the plaintiff is under no obligation to defend the state court action or pay any judgment that might be rendered in that action and that proceedings in the state court action be enjoined, if necessary, to prevent a determination of the issues therein before judgment in this suit. Copy of the policy is attached to the complaint
Both defendants interposed motions to dismiss the complaint, which the court sustained, and from the decree of dismissal entered this appeal is taken by the plaintiff. Broadly stated, plaintiff’s contentions are; (1) That the complaint presents a justiciable controversy upon which a declaratory judgment may be rendered; and (2) that it is not liable under its policy for the damages sought to be recovered in the state court action.
Defendants’ motions to dismiss having been sustained, we must accept as true all the well-pleaded facts in the complaint.
It is urged particularly on behalf of the defendant Pierson, that there is'no present controversy between plaintiff and him because there is no allegation that assured is insolvent or bankrupt, and the policy provides that the injured party has no right to proceed against the insurer until judgment is recovered against the assured and the execution issued is returned unsatisfied because of insolvency or bankruptcy; that if Pierson should recover judgment against assured, it might be satisfied by assured, in which event Pierson would have no claim against the plaintiff, and if judgment were not obtained against assured in the state court action, Pierson would have no claim against the plaintiff.
It appears that the action against assured is actually pending; that Pierson and his attorneys are contending that plaintiff is the insurer of the assured, and that the assured, in turn, has demanded that plaintiff defend him against the claims of Pierson. The policy, as has been observed, obligates the plaintiff to defend assured against this action, and it obligates it “to pay all sums which the assured shall become liable to pay as damages imposed upon him by law for bodily injuries.” The policy also obligates the plaintiff to pay all costs taxed against assured in defending the action now actually pending, including all expenses incurred in the defense of the action and all interest accruing after entry of judgment until the company shall have paid or tendered such part of the judgment as does not exceed the limit of plaintiff’s liability. Stated in another way, while the action in the state court is nominally prosecuted against the assured, the plaintiff, by its contract, is obligated to defend that action and to pay .any judgment for damages that may be recovered.
The acts and events forming the basis of the claims of the assured and Pierson have already taken place, and they have culminated in an actual suit, which, if successfully prosecuted, will render the plaintiff liable. A judgment in the state court action will directly affect the rights of plaintiff, and plaintiff is required to decide, at its peril, whether it should defend the state court action. Plaintiff in effect asks the. court to determine what are the legal rights of the parties under the actually existing facts alleged in the complaint. This does not present any abstract issue nor hypothetical question, and we are concerned with substance rather than form. Pierson and'his attorneys are contending that plaintiff is the insurer of Shrigley and that the terms of the policy inure to and protect defendant Pierson. If defendants are correct in their contention that the injury for which damages are claimed in the state court action- is within the coverage of the policy, a matter on which we express no opinion, then, certainly, as between assured and the insurer, the insurer would be obligated to pay the judgment. Under such circumstances, to assume that the assured would voluntarily pay the judgment and relieve the insurance company of its obligation would be far-fetched and fanciful, and contrary to all human probability.
Great stress is placed upon the provision that, “Any person or his legal representatives who shall obtain final judgment against the assured because of any such bodily injury or injury to or destruction of property and whose execution against the assured is returned unsatisfied because of such insolvency or bankruptcy, may proceed against the company under the terms of this policy to recover the amount of such judgment, etc.” This goes to a matter of procedure, rather than to a question of substance or liability. The obligation exists, not only to defend the action, but to pay the judgment, if any, rendered. Plaintiff, within the limits of its liability, is the real party in interest. This is true whether the assured be solvent or insolvent. The very fact that Pierson is making .claim against plaintiff would itself be persuasive that he considered the assured unable to respond in damages. The issuing of execution and háving it returned unsatisfied would be a mere formality if Shrigley were in fact insolvent, and the allegations of the complaint are sufficient on motion to dismiss to indicate that Pierson is looking to the plaintiff for’ his ultimate recovery. We think the complaint sufficient to present a justiciable controversy. Ætna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730, 87 A.L.R. 1191; Western Casualty & Surety Co. v. Beverforden, 8 Cir., 93 F.2d 166; Columbian Nat. Life Ins. Co. v. Foulke, 8 Cir., 89 F.2d 261; Anderson v. Ætna Life Ins. Co., 4 Cir., 89 F.2d 345; Farm Bureau Mutual Automobile Ins. Co. v. Daniel, 4 Cir., 92 F.2d 838; Associated Indemnity Corporation v. Manning, 9 Cir., 92 F.2d 168; Central Surety & Ins. Corporation v. Caswell, 5 Cir., 91 F.2d 607; Gully, Tax Collector, v. Interstate Natural Gas Co., 5 Cir., 82 F.2d 145.
The lower court was of the view that the obligation to defend and the other various reciprocal rights and duties of the plaintiff and the defendant Shrigley, presented questions which were the subject of an existing, present controversy. As the allegation that the amount in controversy exceeded the sum of $3,000, exclusive of interest and costs was general, however, it concluded that it could not say that the jurisdictional amount was present, expressing the view that the obligation to pay was a distinct obligation and subject to the condition that judgment must be rendered in an action defended by insurer, and hence, that only a hypothetical question was presented as to that issue. We think the trend of judicial decision is against so narrow a construction of the contractual relations of the parties for the purposes of a declaratory judgment action.
The assured was interested in protection from an ultimate liability, and the insurer had a very substantial interest at stake in meeting and measuring that liability if it existed. The obligation to defend was a part of the protection afforded the assured. Its right to defend was also a protection, if availed of, to the insurer. That it regarded this right as vital to its own interests appears from its promise to pay, either upon an agreement to which the assured, the claimant, and it were parties, or upon “final judgment against the assured after actual trial in an action defended by the company.” The rights and duties defined by this policy are so closely interwoven in both the obligation and the right to defend and the agreement to pay the finally determined liability that they should be considered as a whole, establishing a relationship which from the inception of a possible liability entitled assured to demand and the insurer to deny that the principal part of the insurance, the agreement to indemnify against liability, applies to this case, and hence, entitles plaintiff to prosecute the suit under the Declaratory judgment Act. The dominant purpose of the contract as a whole must ,be borne in mind, and any attempt to divide it into distinct, separate parts is to obscure and subvert the intention of the contract and defeat the natural and reasonable expectation of the parties. The controversy here presented involves not only the duty to defend the action, which may end in a liability for a large sum, but the obligation to indemnify the assured against such liability. See Associated Indemnity Corporation v. Manning, supra; Farm Bureau Mutual Automobile Ins. Co. v. Daniel, supra; Central Surety & Ins. Corporation v. Cas-well, supra.
We conclude that the lower court was in error in refusing to entertain jurisdiction and the decree is therefore reversed and the cause remanded for further proceedings consistent herewith.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_improper
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that there was improper influence on the jury? For example, include jury tampering or failure to shield jury from prejudicial media accounts. Exclude prejudicial conduct by the prosecutor." 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".
TRANSCONTINENTAL BUS SYSTEM, INC., et al., Trailways of New England, Inc., Capitol Bus Company, Inc., et al., Virginia Stage Lines, Inc., et al., Continental Tennessee Lines, et al., Deluxe Trailways, Inc., et al., American Buslines, Inc., et al., Continental Pacific Lines, et al., D. C. S. P. Motor Way, Inc., et al., Adirondack Transit Lines, Inc., et al.; National Trailways Bus System, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent. TRANSCONTINENTAL BUS SYSTEM, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent (two cases).
Nos. 22791, 23020-23027, 23054, 23099, 23512, 23513, 23410, and 23411.
United States Court of Appeals Fifth Circuit.
July 24, 1967.
Theodore Hardeen, Jr., Charlottesville, Va., Howard S. Boros, Washington, D. C., Warren A. Goff, Dallas, Tex., for petitioners.
O. D. Ozment, Assoc. Gen. Counsel, Joseph B. Goldman, Gen. Counsel, Warren L. Scharfman, Assoc. Gen. Counsel, Robert L. Toomey, Acting Assoc. Gen. Counsel, John H. Wanner, Gen. Counsel, Civil Aeronautics Bd., Washington, D. C., Howard E. Shapiro, Atty., Dept, of Justice, Washington, D. C., for respondent.
Before GEWIN, THORNBERRY and DYER, Circuit Judges.
GEWIN, Circuit Judge:
These are consolidated petitions for review of several orders of the Civil Aeronautics Board (Board) dismissing without a hearing the petitioners’ consolidated complaints which sought the suspension and investigation of tariffs filed by numerous air carriers providing for reduced rates for military standby, youth standby, and young adult passengers. The petitioners, forty-six independent motor carriers licensed by the Interstate Commerce Commission and a national trade association of motor bus operators, claimed that the tariffs were unreasonable, uneconomic, and unjustly discriminatory in violation of sections 403(b) and 404(b) of the Federal Aviation Act of 1958, 49 U.S.C. §§ 1373(b) and 1374(b) (1964). The Board found that the complaints failed to set forth sufficient facts to warrant suspension or investigation of the tariffs and, in accordance with § 1002 of the Act, 49 U.S.C. § 1482 (1964), dismissed the complaints without a hearing.
The petitioners sought review of the orders approving the military standby tariffs in the eleven Courts of Appeals. The petitions were transferred to this Court and consolidated with the petition filed in this Court, Case No. 22,791. Subsequently, the petitioners sought review of the orders approving the youth and young adult fares in this Court, and those petitions, Nos. 23,410 and 23,411, were also consolidated with Case No. 22,791 in this proceeding. We affirm the action of the Board with respect to the military standby tariff, but set aside the orders relating to the youth and young adult tariffs and remand for further proceedings.
The military standby tariff provides that military personnel traveling in uniform on leave, pass, or furlough or within seven days of discharge may fly on a standby basis for approximately one-half of the regular jet coach fare. The standby status permits the traveler to be accommodated only if seats are available after all regular fare passengers have been boarded and subjects him to being deplaned enroute or “bumped” to accommodate a regular fare passenger.
The youth standby tariff similarly allows a rate reduction of fifty percent of the regular jet coach rate and provides carriage only after all regular fare and military standby passengers have been accommodated. Persons traveling under this tariff may also be “bumped” en-route. The reduced rates are available only to youths over the age of 12 and under the age of 22 who purchase an identification card issued annually by the airlines for the sum of $3.00. The reduced fares are unavailable during certain peak holiday periods, namely Easter, Thanksgiving, Christmas and New Years.
The young adult fare tariff, proposed only by Allegheny Airlines, Inc. is also applicable only to persons between the ages of 12 and 22 who hold identification cards issued annually by the airline for the sum of $10.00. Cards procured after June 30, however, may be purchased for $5.00. This tariff provides for the making of reservations and the rates are two-thirds of the regular first class fare.
To more fully understand the nature of these proceedings a short history of reduced fares for military personnel and youths is required. The Board first sanctioned reduced fares for military personnel traveling at their own expense in 1956. Those tariffs provided for reduced fares on flights between the continental United States and the then territories of Alaska and Hawaii. These rates were authorized under Board regulations issued pursuant to the provision of § 403(b) which excises overseas and foreign tariffs from the strictures of that section and relegates control of such traffic to the Board. When the territories became states, however, travel between them and the continental United States was no longer overseas transportation and the rates were abandoned. The present military standby tariffs here under consideration were first submitted in essentially their present form and were authorized by the Board on a temporary basis in 1963. See American Airlines Military Fares, 38 C.A.B. 1038 (1963). Those tariffs provided for a fifty percent reduction in jet coach rates and applied to military personnel traveling in uniform on furlough, leave, or pass. Carriage under the tariff was on a standby basis, and passengers were to be accommodated only in empty coach seats. The expiration dates for those tariffs were set in early 1965. Subsequent extensions expanded the service to its present state. The complaints of the petitioners in the instant proceeding were directed at tariffs filed by twenty air carriers proposing an indefinite extension of the military standby tariff.
Reduced rates for youths under twelve have traditionally been a part of the rate scheme in the transportation industry. In 1961 the Board first approved reduced fares for youths between the ages of 12 and 22 as a promotional experiment. Those tariffs provided for a fifty percent reduction in fare and permitted the making of reservations within three hours of flight time. Shortly after the tariffs went into effect they were abandoned by the trunkline air carriers because of operating difficulties caused by the tariffs. Several local service carriers, however, continued the reduced rates, and they are still in effect today. In December 1965, American Airlines, Inc. filed the youth standby tariff here in question. On the same day, Allegheny Airlines filed its young adult tariff. Neither tariff contained an expiration date. Complaints were filed against the youth tariff of American by five competing airlines, the American Society of Travel Agents, and the petitioners. Only the petitioners filed a complaint against Allegheny’s young adult tariff. The complaints in both cases sought suspension and investigation of the tariffs. The Board in dismissing the complaints limited its approval to an experimental one year period. It also required the carriers to file quarterly reports containing statistical data and evaluations of the effectiveness of the tariffs.
The petitioners alleged before the Board and assert here on review that the tariffs are unreasonable and unjustly discriminatory in violation of the Federal Aviation Act of 1958 (FAA). They contend that the tariffs are unreasonable and uneconomic because they are not reasonably related to the fully allocated cost of transportation. They also contend that Allegheny’s young adult tariff is unreasonable because there is no cost savings to the air carrier which would justify the reduced fare. They further allege that the young adult tariff is incapable of generating enough additional traffic to overcome the diversion from normal regular fare traffic and that the tariff is therefore not justified under the profit-impact test advanced by the Board.
The petitioners also assert that the fares are unjustly discriminatory because they are based solely on the identity of the traffic, which is “like” all other passenger traffic, and that the factors upon which the Board granted relief in approving the tariff were beyond the scope of its competence because such factors did not relate to carriage. It is alleged that the standby features of the military and youth tariffs do not differentiate the service from regular service in view of the low average load factors on most domestic flights; it is also pointed out that the reservation feature of the young adult tariff eliminates even that minor difference. In addition, the petitioners contend that the identification card requirement of the youth and young adult tariffs do not distinguish the service or serve as a valid distinction as compared with other promotional fares. Thus, the petitioners conclude, the tariffs offer like service to like traffic under the same or similar circumstances at a reduced rate and are therefore unjustly discriminatory in violation of § 404(b) of the FAA.
In dismissing the complaints, the Board ruled that the standby provisions of the military and youth tariffs sufficiently distinguished the service from that offered regular fare passengers, that the fare was not based solely on the identity of the traffic but was justified, in the case of the military standby tariff, by the national defense considerations advanced by the Secretary of the Army, and, in the case of the youth fares, by the traditional discounts offered youths by the transportation industry and the promotional effects of the tariff. The Board further found that the tariffs fostered the financial position of the industry by increasing revenue, improving the utilization of equipment and ground facilities, and filling seats which otherwise would be vacant. With respect to the young adult fares, the Board again noted the industry tradition of granting discounts to youths, the promotional aspects of the tariff, the potential for greater utilization of air transportation by a significant segment of the population not now using air transportation, and the impecunious state of those eligible under the tariff. It also observed that authorizing the tariffs on a one year experimental basis conformed generally with the policy of allowing airline management to exercise its discretion more freely to improve air transportation and increase air carrier traffic.
I.
At the outset we are presented with an argument which basically questions the standing of the petitioners to challenge the tariffs in issue, although the government contends that we do not actually have to reach the question of whether the petitioners have standing in order to dispose of the case. Essentially, the Board asserts that the petitioners have not shown that the action of the Board in approving the tariffs here in question subjects those persons whose interest the relevant portions of the FAA were designed to protect to any substantial harm, and therefore, they can not object to the action of the Board. It argues that §§ 403(b) and 404(b) were intended to protect airline passengers, shippers, and communities served by air carriers from unjust discrimination, and undue and unreasonable preference or prejudice. The mere adverse economic impact of the approved tariffs on the petitioners, competitors of the air carriers, is an insufficient harm to warrant an investigation of suspension of rates. Indeed, the Board asserts that it need not even specifically consider the effect of a proposed rate on surface transportation in determining whether a proposed tariff satisfies the requirements of the sections in question. Since the petitioners have not shown that the orders sought to be reviewed have harmed those protected by the Act, they can not complain of the action of the Board in approving the tariffs. In summary, the Board concludes that it is somewhat anomalous to allow the petitioners to object to tariffs which have widespread support in the áir transportation industry and which have not been objected to by those not eligible to travel at the reduced rates offered under the tariffs.
In Flying Tiger Line, Inc. v. CAB, 121 U.S.App.D.C. 332, 350 F.2d 462 (1965) the Court was presented with substantially the same issue as the one before us, albeit in a different factual background. There, Pan American World Airways, Inc. had filed a tariff which provided for the overseas carriage of military stores and impedimenta traveling under United States Government bills of lading for the Defense Department. Flying Tiger, a competing air carrier, filed a complaint charging that the rates were unjustly discriminatory as a matter of law in violation of § 404(b) in that they were dependent on the status of the shipper, i. e. the tariffs provided for preferential treatment of one shipper, the Federal Government. The Board dismissed the complaint without a hearing. In affirming the Board, the Court concluded that no abuse of discretion Ijad been shown as the complaint did not make out a plausible ease that the order would subject shippers, or other carriers to any substantial harm. 350 F.2d at 465 The Court held that the assertion by Flying Tiger that it was a “sometime shipper of freight over the routes covered by the tariff” did not satisfy the requirement that harm to shippers be demonstrated. It observed that the record did not disclose what, aside from its own equipment, Flying Tiger shipped. The government urges us to reach a similar conclusion and thusly avoid reaching the issue of whether the petitioners have standing.
Sections 403(b) and 404(b) provided in general terms, that airline traffic, both passenger and cargo traffic, is to be treated equally by the air carriers. The sections are designed to insure that rates and services are offered on an equal basis to all who seek to use the air carriers. They were intended to protect the traveling public and were designed to effectuate the “rule of equality” in the air transportation industry.
The granting of preferential and discriminatory rates in an indiscriminate manner was one of the abuses, among others, which gave rise to the passage of the Interstate Commerce Commission Act, New York, N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U.S. 361, 391-392, 26 S.Ct. 272, 50 L.Ed. 515, 521 (1906); Lichten v. Eastern Airlines, Inc., 189 F.2d 939, 941, 25 A.L.R.2d 1337 (2 Cir. 1951), and both that Act and the Civil Aeronautics Act of 1938, as re-enacted in the Federal Aviation Act of 1958, were enacted to halt those abuses. The Civil Aeronautics Board is charged under §§ 102 and 1002 of the Act with, inter alia, enforcing the provisions of §§ 403(b) and 404(b) to protect the public interest. Failure on the part of the Board to implement and enforce these provisions, of the Act, insofar as they relate to the transportation of passenger traffic, necessarily results in the preference of one class or group of passengers to the prejudice of another. As such, a harm to the traveling public results. The petitioners in seeking review of the action of the Board in approving the tariffs here in question, are acting in the interest of the public, and for the protection of a public right.
Although it was early held that a litigant could assert only his own rights, and was barred from asserting the rights of others, see ICC v. Chicago, R. I. & P. Ry., 218 U.S. 88, 109, 30 S.Ct. 651, 54 L.Ed. 946, 957 (1910), and cases cited therein; see also Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938), subsequent decisions of the Supreme Court have substantially modified that rule insofar as review of administrative agency decisions is concerned. Thus, in FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940) the Court held that a competitor who was subject to adverse economic consequences as a result of an agency decision had standing under § 402(b) of the Federal Communications Act to contest the validity of an FCC order granting a new license to a competing station.
The scope and the nature of the action brought by a competitor to obtain judicial review of agency action was further defined in Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942) and FCC v. NBC (KOA), 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374 (1943). Those decisions made it clear that a competitor was empowered to challenge agency action as contrary to law, and that the competitor was vindicating the public interest and right rather than his own. His status as a competitor and the harm to which the agency action subjected him gave him the standing to seek judicial review, but in so doing he was acting for the public benefit. The rationale supporting the competitors right to bring such actions was fully explored and analyzed by Judge Frank in Associated Indus. v. Ickes, 134 F.2d 694 (2 Cir. 1943). It is unnecessary to belabor the question here. It suffices to observe that it is now a well established doctrine of broad application in the law of standing. See National Coal Ass’n v. FPC, 89 U.S.App. D. C. 135, 191 F.2d 462 (1951); see generally, 3 Davis, Administrative Law Treatise § 22.05 (1958).
Section 1006(a) of the Federal Aviation Act of 1958, 49 U.S.C. § 1486 (1964) provides that “Any order, affirmative or negative, issued by the Board * * * under this Act * * * shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition * * * by any person disclosing a substantial interest in such order.” Although the wording of this section varies from that of § 402(b) (2) of the Federal Communications Act under which Sanders Bros, was decided, we think it is broad enough to confer standing on the petitioners under the teachings of Sanders Bros. Cf. Alton R.R. v. United States, 315 U.S. 15, 62 S.Ct. 432, 86 L.Ed. 586, (1942); The Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924); National Coal Ass’n. v. FPC, supra, Seatrain Lines, Inc. v. United States, 152 F.Supp. 619 (Del.1957).
Further, we believe that in the context of § 403(b) and 404(b) the petitioners have demonstrated, under the facts and in the circumstances of this case, a sufficient harm to the traveling public to warrant review. Thus, we find Flying Tiger factually distinguishable. The petitioners assert that the tariffs approved by the Board are uneconomic and unjustly discriminatory. To the extent that these allegations are established, a harm to the traveling public is established. Rates which are unjustly discriminatory violate the provisions of § 404(b) and result in the very harm it was designed to prevent. An unjustly discriminatory rate affords favored service to those eligible under the tariff, and deprives those not eligible of equal treatment. In addition, rates that are uneconomic and unreasonable injure the traveling public either by jeopardizing the financial stability of the air carriers, or by forcing those persons not eligible to travel at the reduced rate to bear a greater and undue portion of the costs of operation. This shifting of operating costs results in placing an oppressive burden on the portion of the public not afforded the reduced rates. Therefore, it seems abundantly clear that the petitioners have alleged sufficient harm to the public to justify judicial review of the action of the Board.
II.
The regulatory scheme created by the Civil Aeronautics Act of 1938, 52 Stat. 973, 977, and subsequently re-enacted in the Federal Aviation Act of 1958, 72 Stat. 731, applicable in this proceeding, is incorporated in sections 403 and 404. As previously indicated, these sections infuse the “rule of equality” into the regulatory policy controlling rates in the air transportation industry. Section 403(a) provides that all rates and fares charged by an air carrier for air transportation to any point served by it shall be filed with the Board. The first sentence of § 403(b) precludes an air carrier from charging any rate, fare, or from offering any rebate, dispensation, or free transportation, except as provided by a tariff filed with the Board pursuant to § 403(a). The second sentence of the section permits the air carriers, subject to terms and conditions established by the Board, to give free or reduced-rate transportation to certain enumerated classes of persons, generally those closely connected with the air carrier. Section 404(a) requires the air carriers to serve all those who reasonably request air transportation at reasonable rates and in a reasonably safe and adequate manner. Unjust discrimination, unreasonable preference or prejudice against passengers, shippers, terminals, or points served are precluded by § 404(b).
The Board is empowered and charged under § 1002 with the responsibility of enforcing the foregoing requirements as well as other provisions of the Act. Section 1002 gives the Board the power, either upon the filing of a complaint or on its own motion, to suspend and investigate tariffs when there is a reasonable ground to believe that a violation of the Act has been established. Under the language of the section, the Board has broad discretionary powers with respect to whether to investigate or suspend a tariff, Nebraska Dept, of Aeronautics v. CAB, 298 F.2d 286 (8 Cir. 1962), and it may dismiss, without a hearing, a complaint which is valid on its face when “it is of the opinion that it does not state facts which warrant investigation.” Flight Eng’rs. International Ass’n. v. CAB, 118 U.S.App. D. C. 112, 332 F.2d 312 (1964). On petition for review, the scope of a reviewing court’s power is limited to a determination of whether the Board has abused its discretion. Pan American-Grace Airways, Inc. v. CAB, 85 U.S.App.D.C. 297, 178 F.2d 34 (1949). Thus, we are simply to determine whether the Board, in dismissing the complaints without a hearing, abused its discretion in concluding that the complaints failed to set forth sufficient facts to demonstrate that the tariffs in question violated the provisions of the FAA and did not require an investigation and possible suspension to protect the public interest.
In dismissing the complaints the Board issued an order in each of the eases consolidated in this proceeding. The orders set forth the Board’s reasons for denying the petitioners the relief they sought. Since the complaints could be dismissed without a hearing, the order need only comply with the requirements of § 6(d) of the Administrative Procedure Act, 5 U.S.C. § 1005(d), and not with the more stringent requirements of § 8(b), 5 U.S.C. § 1007(b). We find that these orders more than meet the procedural requirements of § 6(d), and further or more elaborate findings were not required. It should be noted, however, that in determining whether the Board abused its discretion in dismissing the complaints, we are limited to the orders actually issued, and the rationale advanced therein. It is on the basis of these findings and rationale that we are to test the exercise of discretion by the Board.
The petitioners contend first that reduced-rate transportation may be offered only to persons in those classes listed in § 403(b), and that reduced rates to any other class of persons is illegal per se. They assert that in enumerating the classes of persons to whom reduced rates may be granted, Congress intended to prohibit the granting of reduced rates to any other class of persons or any other traffic when the reduced-rate is offered on the basis of the identity or status of the traffic. Petitioners further urge since neither military personnel nor youths between ages of 12' and 22 are included in the classes of persons listed in § 403(b), the rates here in question are unlawful. The Board argues that § 403(b) permits air carriers to grant reduced rate transportation to those classes of persons listed in the section relatively free of Board control. In granting such transportation, it continues, an air carrier need not satisfy the requirements of § 404(b) and rates offered such persons may not be found violative of the strictures of § 404 (b). However, the Board contends that § 403(b) is not exclusive and that it does not preclude the offering of reduced-rate transportation to other persons, provided such transportation complies with the requirements of § 404(b). Thus, the list of persons to whom reduced-rate transportation may be given is illustrative and not exclusive.
The petitioners base their contention mainly on the 1956 amendment to § 403 (b) which permitted reduced-rate transportation on a standby basis to members of the clergy, and the refusal of Congress in 1959 to amend § 403(b) to permit reduced-rate transportation to military personnel. They assert that in both instances it was the understanding of Congress that reduced-rate transportation must be construed to be exclusive in groups without an amendment of the statute. Thus, they conclude, the section must be construed to be exclusive in order to effectuate this clear manifestation of Congressional interpretation of the statute.
As indicated earlier, reduced-rates for military personnel were permitted under Board regulation issued pursuant to § 403(b) for travel to Alaska and Hawaii. However, when these territories became states, travel between them and the continental United States was no longer “overseas” transportation, but became interstate transportation. As a result the Board could no longer authorize reduced-rates since the provision of § 403 (b) granting the Board authority to regulate overseas transportation was no longer applicable. To enable the air carriers to continue giving the reduced rates, the Board sought Congressional action in the form of an amendment to § 403(b). Congress refused to alter the section. From this refusal to act, and the earlier amendment with respect to members of the clergy, the petitioners infer that reduced rates may only be offered to those persons listed in § 403(b). We do not think such a conclusion need be drawn from either the amendment or from the refusal of Congress to amend the section.
When § 403(b) was amended to permit reduced-rate service for members of the clergy and at the time the Board sought the amendment to allow the giving of reduced-rates to military personnel, a substantial question was raised, as it is now, whether air carriers could, consistent with § 404(b), offer such transportation. Prior to 1959 the Board had taken an extremely stringent line in enforcing the unjust discrimination provisions of § 404(b). See Capital Group Student Fares, 25 C.A.B. 280 (1957); Free and Reduced Rate Transp. Case, 14 C.A.B. 481 (1951); Tour Basing Fares, 14 C.A.B. 257, 259 (1951); Summer-Excursion Fare Case, 11 C.A.B. 218 (1950); ATC Fare Discounts, 29 C.A.B. 1344 (1959). On the basis of this decisional law, and the approach of the Board to the problems of unjust discrimination, the Board might well have concluded that such reduced fares were likely to be unjustly discriminatory. Therefore, in order for the air carriers to offer such rates an amendment to § 403(b) would have been required. Viewed in this context, the refusal of Congress to amend the section does not require us to construe the section as an exclusive limitation on the granting of reduced-rates. Rather, it merely indicates that where a reduced rate is violative of § 404(b), the class of persons to ■whom the rate is offered must be among the enumerated classes in § 403(b). This analysis comports with the interpretation of the section by the Board as it indicates that reduced rates may be offered to the classes listed in § 403(b) with impunity and irrespective of any possible violation of § 404(b). Thus, we conclude that the legislative history of the Board’s unsuccessful attempt to amend § 403(b) does not vitiate, but rather strengthens, the construction of § 403(b) and 404(b) by the Board. See American Trucking Ass’n v. Atchison, T. & S. F. Ry., 387 U.S. 397, 87 S.Ct. 1608, 18 L.Ed.2d 847 (May 29, 1967).
Further, the Board has consistently reviewed under § 404(b) tariffs which proposed reduced-rates for groups or classes or persons not included in the § 403(b) listing, e. g., Nonpriority Mail Rate Case, 34 C.A.B. 143 (1961); Certified Air Carrier Military-Tender Investigation, 28 C.A.B. 902 (1959); Capital Group Student Fares, 26 C.A.B. 451 (1958), and early held that § 403(b) was not an exclusive list of persons to whom reduced-rate transportation may be afforded. Airline Pass Agreement, 1 C.A.B. 677 (1940) (Dictum); ATC (1956) (concurring opinion); American Resolutions re Travel Agents & Tour Conductors, 31 C.A.B. 990, 992 (1959). While the construction of an enabling statute by an administrative agency is not binding on the courts, it is entitled to great weight. Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124, 125 (1944); United States v. American Trucking Ass’n., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). It is the interpretation of the intent of Congress by those charged with effectuating that intent. In addition, the administrative agency is continually involved and vitally concerned with the operation of the statute; the expertise developed through its intimate contact with the problems of the area and the operation of the statute should not lightly be ignored. See American Airlines, Inc. v. C.A.B., 97 U.S.App.D.C. 324, 231 F.2d 483, 488 (1956) (concurring opinion); American Airlines, Inc. v. CAB, 178 F.2d 903 (7 Cir. 1949). In the instant case the Board’s construction of the statute is not only a reasonable one but it is generally consistent with the construction given the analogous section 22 of the Interstate Commerce Commission Act, 49 U.S.C. § 22 (1964); see Nashville C. & St. L. Ry. v. State of Tennessee, 262 U.S. 318, 43 S.Ct. 582, 67 L.Ed. 999 (1923); ICC v. Baltimore & O.R.R., 145 U.S. 263, 12 S.Ct. 844, 36 L.Ed. 699 (1892); Tennessee Prod. & Chem. Corp. v. Louisville & N.R.R., 319 I.C.C. 497 (1963). Since the Civil Aeronautics Act of 1938 was modeled after the I.C.C. Act, the latter provides an appropriate guide in construing the section before us. Cf. American Airlines, Inc. v. North American Airlines, Inc., 351 U.S. 79, 82, 76 S.Ct. 600, 100 L.Ed. 953, 960 (1956) ; ICC v. Delaware, L. & W. R.R., 220 U.S. 235, 31 S.Ct. 392, 55 L.Ed. 448 (1911). In discussing the interpretation to be given to section 22 in relation to sections 2 and 3 of the Act, the portions of the Act analogous to § 404, the Supreme Court said:
“The unlawfulness defined by sections 2 and 3 consists either in an ‘unjust discrimination’ or in an ‘undue or unreasonable preference or advantage,’ and the object of section 22 was to settle beyond all doubt that the discrimination in favor of certain persons therein named should not be deemed unjust. It does not follow, however, that there may not be other classes of persons in whose favor a discrimination may be made without such discrimination being unjust.” ICC v. Baltimore & O.R.R., supra, 145 U.S. at 278, 12 S.Ct. at 848, 36 L.Ed. at 704.
It is therefore clear that the construction of the analogous section 22 is consistent with the Board’s construction of section 403(b).
Although section 22 of the I.C.C. Act specifically provides for reduced rate transportation for military personnel, we do not think that fact undermines the correctness of the construction of section 403(b) advanced by the Board. Military personnel were included in section 22 by way of amendment after the railroads had offered reduced rate transportation to servicemen. The section was amended to insure the continuance of such transportation by precluding any determination that the reduced rates vio lated section 2 or 3 of the Act. See S Rep. No. 1141, 78th Cong., 2d Sess. 2 (1945); 90Cong.Rec. 7385 (1944). That Congress believed it necessary to include the provision in the section does not indicate that § 403 is exclusive.
Nor do we believe that either Slick Airways, Inc. v. United States, 292 F.2d 515, 154 Ct.Cl. 417 (1961), or United States v. Associated Air Transp., Inc., 275 F.2d 827 (5 Cir. 1960) challenge the construction advanced by the Board. In both Slick and Associated the issue was whether the government was bound, under its contract with the air carriers for the carriage of military goods and personnel, by the tariff filed by the air carriers pursuant to § 403(a). The Court in both instances held that the tariff was controlling and the government was bound under its contract to pay the tariff rates. The cases are factually and legally distinguishable; they do not aid in the resolution of the issue before us.
We agree with the conclusion of the Board that § 403(b) merely permits the granting of reduced-rate transportation to the classes of persons enumerated in the section without regard to whether such rates meet the requirements of § 404(b), and does not preclude the giving of discriminatory rates in a proper case to other classes of persons. The limitation on such discriminatory rates is contained in § 404(b). This construction of the sections accords with common sense and produces a reasonable and rational result. The legislative history of the amendments to § 403(b) do not require a different construction. Accordingly, we conclude that the tariffs here in question are not unlawful because the persons to whom the reduced-rate transportation is offered are not listed in § 403(b). Flying Tiger Line, Inc. v. CAB, 121 U.S.App.D.C. 332, 350 F.2d 462 (1965); American Airlines, Inc. v. CAB, 178 F.2d 903 (7 Cir. 1949).
III.
We turn now to the major issue raised by these petitions for review: whether the Board, in dismissing the petitioners’ complaints without a hearing, abused its discretion in concluding that the complaints failed to set forth sufficient facts to warrant investigation of whether the tariffs here in question were unjustly discriminatory. The Federal Aviation Act of 1958 does not define the term unjust discrimination, but it is acknowledged that the term refers to section 2 of the Interstate Commerce Commission Act which precludes different treatment of like traffic for like and contemporaneous service under substantially similar circumstances and conditions. Wight v. United States, 167 U.S. 512, 42 L.Ed. 258, (1897); ICC v. Delaware, L. & W.R.R., 220 U.S. 235, 31 S.Ct. 392, 55 L.Ed. 448 (1911); Summer Excursion Fares, 11 C.A.B. 218 (1950). Such discrimination may result from the charging of different rates to different shippers or passengers afforded the same service, Wight v. United States, supra; International Air Freight Forwarders Investigation, 27 C.A.B. 658 (1958), or from the offering of special services to only a select patron or group of patrons. Baltimore & O. R. R. v. United States, 305 U.S. 507, 59 S.Ct. 284, 83 L.Ed. 318 (1930); Seaboard Air Line Ry. v. United States
Question: Did the court conclude that there was improper influence on the jury? For example, include jury tampering or failure to shield jury from prejudicial media accounts. Exclude prejudicial conduct by the prosecutor.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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sc_lcdisposition
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
FLORIDA v. JIMENO et al.
No. 90-622.
Argued March 25, 1991
Decided May 23, 1991
Rehnqlist, C. J., delivered the opinion of the Court, in which White, Blackmun, O'C.onnoR, Scalia, Kennedy, and Souter, JJ., joined. Marshall, J., filed a dissenting opinion, in which Stevens, J., joined, l>ost, p. 252.
Michael J. Neimand, Assistant Attorney General of Florida, argued the cause for petitioner. With him on the brief was Robert A. Butterworth, Attorney General.
Deputy Solicitor General Roberts argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Sean Connelly.
Jeffrey S. Weiner argued the cause for respondents. With him on the brief was Dennis G. Kainen.
Chief Justice Rehnquist
delivered the opinion of the Court.
In this case we decide whether a criminal suspect’s Fourth Amendment right to be free from unreasonable searches is violated when, after he gives a police officer permission to search his automobile, the officer opens a closed container found within the car that might reasonably hold the object of the search. We find that it is not. The Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect’s consent permitted him to open a particular container within the automobile.
This case began when a Dade County police officer, Frank Trujillo, overheard respondent, Enio Jimeno, arranging what appeared to be a drug transaction over a public telephone. Believing that Jimeno might be involved in illegal drug trafficking, Officer Trujillo followed his car. The officer observed respondents make a- right turn at a red light without stopping. He then pulled Jimeno over to the side of the road in order to issue him a traffic citation. Officer Trujillo told Jimeno that he had been stopped for committing a traffic infraction. The officer went on to say that he had reason to believe that Jimeno was carrying narcotics in his car, and asked permission to search the car. He explained that Jimeno did not have to consent to a search of the car. Jimeno stated that he had nothing to hide and gave Trujillo permission to search the automobile. After Jimeno’s spouse, respondent Luz Jimeno, stepped out of the car, Officer Trujillo went to the passenger side, opened the door, and saw a folded, brown paper bag on the floorboard. The officer picked up the bag, opened it, and found a kilogram of cocaine inside.
The Jimenos were charged with possession with intent to distribute cocaine in violation of Florida law. Before trial, they moved to suppress the cocaine found in the bag on the ground that Jimeno’s consent to search the car did not extend to the closed paper bag inside of the car. The trial court granted the motion. It found that although Jimeno “could have assumed that the officer would have searched the bag” at the time he gave his consent, his mere consent to search the car did not carry with it specific consent to open the bag and examine its contents. No. 88-23967 (Cir. Ct. Dade Cty., Fla., Mar. 21, 1989); App. to Pet. for Cert. A-6.
The Florida District Court of Appeal affirmed the trial court’s decision to suppress the evidence of the cocaine. 550 So. 2d 1176 (Fla. 3d DCA 1989). In doing so, the court established a per se rule that “consent to a general search for narcotics does not extend to ‘sealed containers within the general area agreed to by the defendant.’” Ibid. The Florida Supreme Court affirmed, relying upon its decision in State v. Wells, 539 So. 2d 464 (1989), aff’d on other grounds, 495 U. S. 1 (1990). 564 So. 2d 1083 (1990). We granted cer-tiorari to determine whether consent to search a vehicle may extend to closed containers found inside the vehicle, 498 U. S. 997 (1990), and we now reverse the judgment of the Supreme Court of Florida.
The touchstone of the Fourth Amendment is reasonableness. Katz v. United States, 389 U. S. 347, 360 (1967). The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. Illinois v. Rodriguez, 497 U. S. 177 (1990). Thus, we have long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so. Schneckloth v. Bustamonte, 412 U. S. 218, 219 (1973). The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of “objective” reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect? Illinois v. Rodriguez, supra, at 183-189; Florida v. Royer, 460 U. S. 491, 501-502 (1983) (opinion of White, J.); id., at 514 (Blackmun, J., dissenting). The question before us, then, is whether it is reasonable for an officer to consider a suspect’s general consent to a search of his car to include consent to examine a paper bag lying on the floor of the car. We think that it is.
The scope of a search is generally defined by its expressed object. United States v. Ross, 456 U. S. 798 (1982). In this case, the terms of the search’s authorization were simple. Respondent granted Officer Trujillo permission to search his car, and did not place any explicit limitation on the scope of the search. Trujillo had informed Jimeno that he believed Jimeno was carrying narcotics, and that he would be looking for narcotics in the car. We think that it was objectively reasonable for the police to conclude that the general consent to search respondents’ car included consent to search containers within that car which might bear drugs. A reasonable person may be expected to know that narcotics are generally carried in some form of a container. “Contraband goods rarely are strewn across the trunk or floor of a car.” Id., at 820. The authorization to search in this case, therefore, extended beyond the surfaces of the car’s interior to the paper bag lying on the car’s floor.
The facts of this case are therefore different from those in State v. Wells, supra, on which the Supreme Court of Florida relied in affirming the supression order in this case. There the Supreme Court of Florida held that consent to search the trunk of a car did not include authorization to pry open a locked briefcase found inside the trunk. It is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the-trunk, but it is otherwise with respect to a closed paper bag.
Respondents argue, and the Florida trial court agreed, that if the police wish to search closed containers within a car they must separately request permission to search each container. But we see no basis for adding this sort of superstructure to the Fourth Amendment’s basic test of objective reasonableness. Cf. Illinois v. Gates, 462 U. S. 213 (1983). A suspect may of course delimit as he chooses the scope of the search to which he consents. But if his consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization. “[T]he community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense.” Schneckloth v. Bustamonte, supra, at 243.
The judgment of the Supreme Court of Florida is accordingly reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Marjorie GRIFFIN and Sandra McWhorter, Appellants, v. CITY OF OMAHA, a municipal corporation; Robert Wadman, in his capacity as Chief of Police of the City of Omaha; James Doyle, in his capacity as Personnel Director of the City of Omaha, Appellees. .
No. 85-1455.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 9, 1985.
Decided March 4, 1986.
Rehearing and Rehearing En Banc Denied April 3, 1986.
Robert V. Broom, Omaha, Neb., for appellants.
Denise A. Hill, Omaha, Neb., for appellees.
Before HEANEY, JOHN R. GIBSON and FAGG, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
Marjorie Griffin and Sandra McWhorter appeal the judgment of the district court denying their claims of racial and sexual discrimination brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(l)-(2) (1982), and 42 U.S.C. §§ 1981, 1983 (1982). The appellants’ claims arise out of their termination from the Omaha Police Department recruit class • of 1981 for failure to meet, the minimum firearms proficiency standards. Griffin and McWhorter, both black women, contend that they received inadequate firearms training, qualitatively and quantitatively inferior to the training provided other recruits; that they were terminated from the recruit program for failure to satisfy firearms qualification standards while a similarly situated white male was retained in the program; and, that they were subjected to a racially discriminatory work environment. In addition to their claims of disparate treatment and discriminatory work environment under Title VII, and intentional discrimination under sections 1981 and 1983, the appellants contend that the Police Department’s facially neutral firearms qualification requirements disproportionately exclude blacks and women and thereby violate the disparate impact provisions of Title VII. The appellants argue on appeal that the district court’s findings, that they were not provided inferior training nor terminated from the recruit program because of their race or sex, nor subjected to a discriminatory environment, are clearly erroneous, and they seek reinstatement into the police department. On review, we are left with the firm impression that a mistake has been made and that certain findings of the district court are clearly erroneous. We reverse the judgment and remand the cause for further consideration consistent with this opinion.
The Omaha Police Department’s (OPD) 1981 recruit class consisted of 34 individuals: fourteen white males, twelve black males, three hispanic males, two white females and three black females. The 1981 recruit class had the greatest number of black officers in the OPD’s history. Twenty-five members of the 1981 recruit class graduated; all nine recruits terminated were black, and included all three black females.
In October 1980, approximately one year before the appellants joined the OPD as recruits, the City of Omaha (City) entered into a consent decree which required an increase in black employment in the OPD. The district court found that the hiring requirements of the consent degree had caused considerable racial tension within the OPD ranks. The district court further found that rumors had circulated among officers and recruits that black recruits would be “washed out” of the 1981 recruit program. Additionally, a number of black recruits had been experiencing academic difficulties and had expressed concern to members of the Brotherhood of Midwest Guardians, an organization of black police officers, that black recruits were being ignored in class and were receiving training inferior to that provided white recruits. The district court found that the defendants, upon learning of the black recruits’ concerns, took steps to improve the work atmosphere and promote more positive feelings within the ranks. In addition, the OPD administration, along with the City’s Affirmative Action Officer and the Midwest Guardians, began actively to monitor the situation. The Public Safety Director, in charge of the OPD, personally investigated the matter and discussed it with the Midwest Guardians and the OPD training personnel. Several minority recruits testified at trial that they did not perceive nor were they subjected to racial hostility from the training staff.
The bulk of the evidence presented at trial concerned two issues: what were the OPD firearms proficiency standards, and did the appellants meet those standards; and, whether the training provided the appellants and other recruits was adequate to qualify with firearms.
Before the 1980 consent decree, the OPD had no written firearms standards. However, it regularly and uniformly had terminated any recruit who failed to achieve a score of 65 on any of six pre-final qualification shoots, with one make-up shoot allowed to achieve a passing score. A written policy was drawn up in December 1980 which set the minimum record score — the original shoot or the make-up shoot — for any pre-final qualification shoot at 65, and permitted only one make-up shoot for any one pre-final qualification shoot failed. The written policy also required a recruit to maintain an average of 70 or better in the six pre-final qualification shoots. Additionally, the policy provided that any recruit who failed to score 70 or better on any qualification shoot would be given necessary corrective assistance. If a recruit’s record score fell below 65, the recruit would be recommended for termination; if the recruit’s average score for the six prefinal qualification shoots was below 70, the recruit also would be recommended for termination. Lastly, the policy provided that a recruit’s score on a final qualification shoot would be averaged with the pre-final scores to determine the recruit’s “shooting score”; no make-ups would be allowed for this final qualification shoot. The policy did not set any specific score that must be achieved on the final shoot. Addendum to Appellants Opening Brief at 40.
The recruits underwent firearms training and practice prior to the pre-qualification shoots. Neither Griffin nor McWhorter had used a firearm before. After the first pre-final qualification shoot, approximately seven weeks into the training, no regularly scheduled practice sessions were provided. The appellants testified that the training instructors failed to criticize their technique or provide instruction during the training and practice phase despite their evident problems with firearms. They further testified that the training officers did not assist them properly to correct their errors during the first five pre-qualification shoots, despite the fact that Griffin failed one shoot and McWhorter failed three of the first five shoots.
On November 5, 1981, Griffin, McWhorter and Rosalyn Cotton, the third black female, failed the sixth pre-final qualification shoot. For the first time, a white male, William Dussetschleger, failed as well. The district court found that all four recruits were thereafter recommended for termination. The three black female recruits complained to the Midwest Guardians that the firearms training they had received was inadequate; the Guardians in turn brought these complaints to the attention of the OPD administration. After considering these complaints, the OPD administration revised the firearms qualification policy and permitted all four recruits to remain in the recruit class. Under the revised standard, recruits would be certified upon completion of the entire training if they achieved a minimum average of 70. Addendum to Appellant’s Opening Brief at 43. The administration ordered the training officers to give the four recruits additional assistance after hours to prepare them for the final qualification shoot. The Acting Chief of Police also ordered the training officers to submit to him written reports indicating the nature of the recruits’ problems and their progress.
When it became apparent that Griffin, McWhorter and Rosalyn Cotton were having difficulty with firearms training, Maggie Heaston, the City Affirmative Action Officer, suggested to Public Safety Director Joe Friend a number of additional methods to remedy the inadequate firearms training allegedly provided the black women recruits. Friend rejected these suggestions without discussion.
Consistent with Friend’s orders, the four recruits were provided additional training. Recruit Dussetschleger was assigned to the chief firearms training officer, Officer Benak; Griffin and Cotton were assigned to Officer Pekula, and McWhorter was assigned to Officer Schlotman. Louis Dirks, Training Officer at the Law Enforcement Training Center at Grand Island, Nebraska,- testified as appellant’s firearms expert. According to Dirks, who had reviewed the training officers’ reports to the Acting Chief of Police, Officer Benak’s reports indicate that he made an early diagnosis of Dussetschleger’s problems and devised a remedy which proved successful. Dirks complimented the quality and specificity of Benak’s diagnosis and suggested remedies. Dussetschleger passed the final qualification shoot with a score of 87.2, which gave him an overall average score for the qualification shoots of 76.1.
On the other hand, Dirks criticized the reports filed by Officers Pekula and Schlotman. He testified that they did not specifically diagnose the recruits’ individual problems, but merely reiterated “basics,” and suggested inappropriate remedies. The officers admitted at trial that their reporting was “negligent,” but both provided an oral account of their diagnoses of the recruits’ problems. Griffin scored a 64.8 on . the final qualification shoot, which brought her overall average to 73.1. McWhorter scored a 47.6 on the final qualification shoot, which brought her overall average to 66.3. Cotton also failed to score a 65 on the final shoot, and her average was below 70. Griffin, McWhorter and Cotton, all of whom had satisfactorily completed all other training activities and testing required of police recruits, were terminated. Dussetschleger graduated from the recruit program.
Testimony from expert witnesses called by both parties established that termination for failure to meet firearms standards is rare. Dirks testified that both Griffin and McWhorter came to the Grand Island training center after they had been terminated from the OPD. He testified that he was able to diagnose their problems and qualified both within a weekend.
The district court found that Griffin and McWhorter had not been given satisfactory instruction or guidance during the early stages of firearms training, but that the training given other recruits was just as unsatisfactory. The court concluded that the firearms training provided the appellants was not quantitatively or qualitatively different from that provided other recruits because of the appellants’ race or sex. The district court also concluded that the appellants were not terminated on the basis of race or sex. The court found that while they had failed to meet the OPD firearms requirement, Dussetschleger, a white male, had improved steadily during practice sessions and met the minimum proficiency standards. Thus, the district court concluded, based on this evidence, the appellants had failed to make out a prima facie case of disparate treatment.
The district court also concluded that the appellants had failed to make out a case of disparate impact. The district court recognized that hand strength is a factor in marksmanship, and particularly important for handgun accuracy at longer distances, but concluded that “beyond this testimony, no other evidence was offered to prove that women as a group, are statistically inferior to men in regard to hand strength or general ability to handle firearms.” Griffin v. City of Omaha, CV-83-0-186, slip op. at 20 (D.Neb. Mar. 4, 1985). The court concluded that the evidence was not sufficient to demonstrate that females have a greater incidence of error in training in the use of firearms.
The district court also concluded that the appellants had failed to prove that racism sufficiently pervaded the work environment to constitute a violation of Title VII. Finally, the district court concluded that the appellants had failed to prove a violation of sections 1981 and 1983. The court reasoned that the legal analysis under sections 1981 and 1983 is essentially the same as that which is applied to disparate treatment claims under Title VII.I. ****
Griffin and McWhorter argue on appeal that the district court erred in rejecting their disparate treatment and disparate impact claims and in finding that the City did not discriminate against them with respect to either their firearms training or their discharge.
I.
Proof of disparate treatment under Title VII follows a well-established pattern. The plaintiff initially must establish a prima facie case by proving facts sufficient to give rise to an inference of discrimination. If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the allegedly impermissible employment decision. If these initial burdens are met, the plaintiff is then afforded an opportunity to show that the employer’s justifications for the decision are mere pretexts, concealing improper motivation. McDonnell Douglas Cory. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668 (1973); see also Patterson v. Masem, 774 F.2d 251, 254 (8th Cir.1985). The district court, following this analytic pattern, held that Griffin and McWhorter had failed to make out a prima facie case that the City had impermissibly discriminated against them in either their firearms training or their termination for failure to meet the minimum firearms proficiency standards. Our review of the district court’s findings, however, need not follow this strict sequence. We may look directly to the ultimate factual issue: whether the City intentionally discriminated against the appellants. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983); see also Patterson, 774 F.2d at 254; Craft v. Metromedia, 766 F.2d 1205, 1211 (8th Cir.1985).
Appellate review of a district court’s factual findings is limited, however, by the “clearly erroneous” standard. Fed. R.Civ.P. 52(a); see Anderson v. City of Bessemer City, — U.S. —, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). We may not reverse the district court’s findings that the appellants were not subject to impermissible discrimination unless our review of the record leaves us with the “definite and firm conviction that a mistake has been made.” Anderson, 105 S.Ct. at 1511 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). Reviewing courts must refrain from duplicating the function of the trial court by attempting to decide factual issues de novo after an independent review of the record. Id. at 1511— 12. The Supreme Court made clear, however, that a district court’s findings are not entirely insulated from appellate review, even if they are based on witness credibility. Where physical, documentary or other forms of objective evidence contradict a witness’s story, or that story is so internally inconsistent or implausible th'at a reasonable factfinder would not credit it, a reviewing court may find clear error even “in a finding purportedly based on a credibility determination.” Id. at 1513. The burden is on the objecting party to demonstrate clear error in factual findings, and the evidence must be construed in the light most favorable to the party who prevailed at trial. Craft, 766 F.2d at 1212.
From our review of the record, we are left with the firm impression that the district court mistakenly concluded that neither Griffin nor McWhorter was subject to intentional discrimination on the basis of race. We are satisfied that Griffin met the applicable firearms standards. Further, with respect to McWhorter, we believe that the district court failed to consider important evidence and testimony, some of which contradicts evidence and testimony upon which the court premised its findings.
We turn first to the evidence with respect to the firearms qualification standards applied to the recruit class. The district court found that the OPD standards required a recruit’s disqualification if she scored below 65 on any shoot — pre-final or final qualification — or failed to maintain an overall average score of 70. The district court mechanically applied these standards to the appellants’ scores and determined that they had failed to meet the minimum standards, while the white male recruit who experienced problems with firearms training had satisfied them.
We believe the court clearly erred in finding that Griffin and McWhorter failed to satisfy the official OPD firearms standards. Public Safety Director Friend, who had ultimate responsibility for terminating the appellants, testified that he employed a subjective “deterioration" standard, not the official OPD standard. Friend repeatedly admitted that he terminated the appellants because their scores deteriorated and fell below 65. Thus, according to the testimony of the official responsible for the decision, the appellants were not discharged for failure to meet the announced OPD firearms standards, but for failure to meet a new, subjective standard. The district court’s finding that the appellants were terminated because they failed to comply with the established OPD firearms proficiency standards therefore is clearly erroneous.
Moreover, we believe the district court erred in finding the official OPD firearms standard required a recruit to score 65 or above on the final qualification shoot. The first written standards, introduced in 1980, required that a recruit maintain an average of 70 or better for the six pre-final qualification shoots, though a recruit with a record score on any pre-final shoot— original or make-up — under 65 would be recommended for termination. With regard to the final qualification shoot, the written policy stated only that the score for this shoot — for which no make-up would be allowed — would be averaged with the prefinal qualification scores to determine the recruit’s shooting score. The written policy does not provide that a recruit must score a 65 or better on the final shoot.
These standards were revised on November 6, 1981, in response to the appellants’ complaints of inadequate training, to permit recruits to be certified if they had achieved an average of 70 upon completion of the training. This policy revision was explicitly acknowledged in a letter from the Assistant City Attorney to the Nebraska Equal Opportunity Commission responding to the appellants’ charges filed with that administrative body. The district court did not discuss the written firearms policy, nor take notice on the record of the City’s admission in its filing with the NEOC. This admission contradicts and discredits the testimony at trial suggesting that the OPD official policy required a recruit to score a 65 on the final qualification shoot. Cf. Anderson, — U.S. at-, 105 S.Ct. at 1512 (appellate court finding of clear error may be based on objective or documentary evidence which contradicts witnesses’ testimony).
This evidence established that the official OPD firearms policy required a recruit only to maintain a 70 average after all qualification shoots. The City acknowledged, and the district court found, that Griffin satisfied this requirement; the testimony demonstrated that Griffin maintained an overall score of 73.1. Therefore, had the Public Safety Director applied the official OPD firearms standards to Griffin, he would necessarily have concluded that she passed the firearms qualification.
Therefore, we conclude that the district court was clearly erroneous in finding that Griffin was dismissed for failing to meet the OPD firearms standards. We therefore reverse the judgment of the district court with respect to appellant Griffin, and remand with directions that it enter a judgment in favor of Griffin and determine the remedy that will make her whole.
McWhorter, on the other hand, manifestly did not satisfy the firearms standards, announced or applied. This, she claims, resulted from inferior, discriminatory firearms training. The district court found that appellants’ training, though perhaps poor, was not materially different from that provided the other recruits. We believe that there is testimony in the record, none of which was the subject of specific findings by the district court nor explicitly referred to in its memorandum opinion, which appears to strongly contradict evidence and testimony upon which it relied in concluding that the appellants had not received inferior firearms training. We recognize, of course, that a district court’s failure to explicitly account for evidence favorable to the appellant does not render its decisions clearly erroneous, nor even suspect. Grebin v. Sioux Falls Independent School District No. 49-5, 779 F.2d 18, 19 (8th Cir.1985); Talley v. United States Postal Service, 720 F.2d 505, 507 (8th Cir.1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2155, 80 L.Ed.2d 541 (1984). The trial court need not make specific findings with respect to all the evidence presented, nor even refer to all the evidence introduced, particularly when the trial is lengthy and complex, as was this one. See Grebin, 779 F.2d at 19; Talley, 720 F.2d at 507. However, Rule 52 does not free the district court of the burden of assuring the appellate court, through findings of fact or references in its memorandum opinion, that it has considered strongly conflicting evidence and “come to grips with apparently irreconcilable conflicts.” Tate v. Weyerhauser Co., 723 F.2d 598, 605 (8th Cir.1983) (quoting EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 640 (4th Cir.1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984)), cert. denied, — U.S. —, 105 S.Ct. 160, 83 L.Ed.2d 97 (1984). A district court’s findings are clearly erroneous “to the extent that they fail to recognize [important] incidents and reject or fail to draw the inferences which we have found inescapable from the record.” Alexander v. National Farmers Organization, 687 F.2d 1173, 1203 (8th Cir.1982), cert. denied, 461 U.S. 937, 103 S.Ct. 2108, 77 L.Ed.2d 313 (1983).
Specifically, we believe the district court should have accounted for the uncontradicted testimony of virtually every firearms expert who testified that it is extremely unusual that an individual, male or female, cannot be trained to qualify in firearms, and the testimony of Dirks that both appellants were qualified at the state police training center within one weekend.
The City’s firearms expert, Robert Monroe, a retired FBI agent, stated that it would be an unusual occurrence to be unable to train a person to qualify with firearms, although he acknowledged that it does happen. Although he was unable to recall from the thousands of individuals he has trained how many he was unable to qualify, he testified that he never had 10 percent of a class that failed to qualify. He further testified that he never had trained a class where he could not train 60 percent of the females and 100 percent of the black females. Monroe admitted that he had never had a particular class in which three women had failed. Captain (then Lieutenant) Sorys, in charge of the OPD recruit training program during the relevant period, testified that of 225 to 230 recruits that had been at the academy since he has been associated with the Training Division, only 4 had failed to pass firearms qualification. Dirks testified that of 1100 recruits, he had failed to qualify only one in firearms.
Where the discharge of three black females from one recruit class for failure to qualify with firearms was the primary issue before the court, we believe that this testimony, passed over by the court, is of extreme significance.
We believe, therefore, that the appropriate course is to remand this cause to the district court with respect to recruit McWhorter. The district court should reconsider its decision in light of the issues and evidence which we have discussed above. As we have noted, “appellants should be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clear after scrutinizing each.” Alexander, 687 F.2d at 1207-08 (quoting Continental Ore Co. v. Union Carbide Carbon Co., 370 U.S. 690, 699, 82 S.Ct. 1404, 1410, 8 L.Ed.2d 777 (1962)).
The testimony made abundantly clear the need for firearms standards for police officers. Our concern, however, is with application of the standards and the inconsistencies apparent in the record of this case, particularly when the failure to qualify seems to be such a rare occurrence, and where it fell on three black women who made strong arguments of inadequate training.
We reverse the judgment of the district court and remand for determination of a proper remedy for Griffin, and for further consideration of McWhorter’s claims consistent with this opinion.
. One black male recruit resigned, one black male was terminated for. criminal charges, four black males were terminated for academic reasons, and all three black females were terminated for failure to meet the firearms qualification standards. The OPD later rehired the four recruits terminated for academic reasons and provided them remedial assistance.
. The consent decree ended two actions consolidated by the United States District Court for the District of Nebraska, Brotherhood of Midwest Guardians v. City of Omaha, CV 79-L-528 (D.Neb. Oct. 23, 1980), and United States v. City of Omaha, CV 80-0-631 (D.Neb. Oct. 23, 1980). The decree required the OPD to fill forty percent of all vacancies with qualified blacks until black officers constituted 6 percent of the sworn ranks; thereafter the percentage of vacancies to be filled by black officers would be reduced until 9.5 percent of the OPD was black.
. The remark that recruits would be "washed out” was attributed to a white male training officer, Officer Schlotman, during an address to recruits. Several recruits testified that they interpreted the remark to mean that the black recruits would be targeted for termination. Other recruits, however, testified that they considered the remark part of a general message in a martial environment that the training program would be rigorous. However the remark was intended, it apparently generated considerable concern among the recruit class and the police ranks.
. Rosalyn Cotton, like the plaintiffs, had no experience with firearms. She was recommended for termination by the training officers and the Acting Chief of Police after the third practice session. The Public Safety Director denied this recommendation for termination.
. Heaston suggested that the recruits receive additional training from the State Law Enforcement Center Training at Grand Island, Nebraska; that a firearms training expert from the FBI be brought in; that additional training be given by members of the Midwest Guardians; and that the stock of the weapons be modified to fit the womens’ hands.
. Because of our decision on the plaintiffs’ disparate treatment claims, we need not determine if the district court’s findings on the disparate impact claim, and the section 1981 and section 1983 claims, are clearly erroneous. Our remand to the district court to reconsider plaintiff McWhorter’s disparate treatment claim does not prejudice her right to appeal again her other claims should the district court again conclude that she was not subject to disparate treatment.
. The Court: Mr. Friend, let me ask you this directly then. Did you disqualify and terminate Ms. Griffin because her shooting deteriorated or because she shot a 64.8 on the final shoot?
[Mr. Friend]: As I have previously stated, your Honor, it was because it seemed to have deteriorated. As a matter of fact it was brought to my attention that her overall average was above 65, but my final determination was because of the deterioration of the shooting and the final two scores were below the required — what is required is 65 is passing. The Court: But you disqualified her because she deteriorated and not because she fired the two 64’s specifically?
[Mr. Friend]: That was my reasoning, yes, sir.
The Court: So what we had here then was, in essence, then a subjective termination as opposed to an objective termination? Let’s stick with Ms. Griffin for the time being.
[Mr. Friend]: Yes, sir. I have a hard time with those terms, ‘objective’ and ‘subjective’, but it was my best — the discretion that I used in the decision that I made — .
******
The Court: Well, perhaps the terms are bad, but it was a discretionary thing with you? [Mr. Friend]: Yes, sir.
Tr. at 1072-74.
. Griffin’s qualification scores were: 74.6; 76.8; 77.6; 64.0, make-up: 66.4; 87.6; 59.6, make-up: 64.0; 64.8. Dussetschleger’s qualification scores were; 88.0; 73.6; 58.4, make-up; 68.4; 67.6; 90.4; 57.6, make-up; 52.4; 87.2.
We have some reservation, moreover, whether the Public Safety Director applied the subjective deterioration standard consistently. A comparison of Griffin's qualification scores with Dussetschleger’s scores, which Friend testified demonstrated sufficient improvement to merit certification, does not reveal any significant deterioration in Griffin’s scores not similarly suffered by Dussetschleger. With the exception of the final shoot, Griffin’s scores appear to be comparable throughout the training.
. It is not clear from Captain Sorys’ testimony whether he included the appellants among the four recruits who failed to qualify with firearms.
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_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.
LAFLIN v. COMMISSIONER OF INTERNAL REVENUE (three cases).
Nos. 4950-4952.
Circuit Court of Appeals, Seventh Circuit.
March 15, 1934.
William B. Hale and Calvin F. Selfridge, both of Chicago, Ill, for petitioner.
Pat Malloy, Asst. Atty. Gen., and Sewall Key and John MaeC. Hudson, Sp. Assts. to Atty. Gen. (E. Barrett Prettyman, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., and-R. N. McMillan, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C., of counsel), for respondent.
Before ALSCHULER, EYAUS, and FITZHENRY, Circuit Judges.
“In trust to hold, manage, administer and control the trust estate until the termination of all the trusts hereby created and in so doing my said Trustee shall have full power and authority to do all and the same acts and to exercise all and the same discretion-and to execute and deliver all and the same instruments which she might do, exercise and execute if she were the actual beneficial owner of the property held by her at any time in trust under the provisions of this my Will; and in trust to collect all the income, rents and profits of the trust estate and out of the same to pay all taxes and special assessments and all water rates and all other public charges of every kind and description whatsoever on all of the property belonging to the trust estate, and also all cost of insurance and all necessary and proper costs, charges and expenses of any and every kind and description whatsoever connected with or growing out of the management of the trust estate or the exercise of any of the powers conferred by this my Will on my said Trustee.”
“My said wife shall be entitled to receive and retain as her own absolute property all the net income of the trust estate as long as she shall live.”
ALSCHULER, Circuit Judge.
These appeals present the single question: Whether petitioner, out of the income to her as beneficiary under a trust created by the will of her deceased husband, was entitled to withhold from taxation an amount which she, as the trustee, annually set apart as a depreciation reserve upon a valuable commercial building in Chicago which belonged to the trust estate.
The will named petitioner as trustee upon trusts of which the parts here material appear in the margin. The amounts so set apart as depreciation were invested and held by the trustee as a part of the capital assets of the trust estate.
Respondent amended petitioner’s returns by including as taxable income the amounts she annually set apart for depreciation and obsolescence, which action on appeal by petitioner the B. T. A. sustained. 36 B. T. A. 136.
It is a rule of general application that the beneficiary of a trust entitled thereunder to receive the income from such property may not be required to suffer a deduction from such income for the ereation of a sinking fund to provide for depreciation and obsolescence, unless, indeed, the trust instrument or the law of the state makes provision therefor. We find nothing in the trust instrument itself which would authorize the life tenant to set up such a reserve. There is the general authority to pay “all taxes and special assessments and all water rates and all other public charges of every kind and description whatsoever on all of the property belonging to the trust estate, and also all cost of insurance and all necessary and proper costs, charges and expenses of any and every kind and description whatsoever connected with or growing out of the management of the trust estate or the exercise of any of the powers conferred by this my Will on my said Trastee.”
But in our judgment this does not even suggest any duty or right to set apart a sinking fund to provide for depreciation.
We do not find that the law of Illinois authorizes or requires the setting up of such a reserve as between the life tenant and the remainderman. Generally speaking, depreciation and obsolescence of sncli property must be borne by the latter. Hubbell v. Burnet, 46 F.(2d) 446 (C. C. A. 8); United States v. Bostwick, 94 U. S. 53, 66, 24 L. Ed. 65; Rendahl v. Hall, 160 Minn. 502, 200 N. W. 744, 940 and cases there cited; Thompson on Real Property, § 761; 21 C. J. 951, § 90.
We refer with approval to' the opinion of the B. T. A., which in our judgment correctly disposes of the matter. Since publication of the Board’s opinion, the Supreme Court has decided the eases of Freuler v. Helvering, Com’r, 54 S. Ct. 308, 78 L. Ed. -, and Whitcomb v. Helvering (Jan. 8, 1934) 54 S. Ct. 315, 78 L. Ed. ——, which support this conclusion.
In Commissioner v. Freuler, 63 F.(2d) 733 (C. C. A. 8), the court, considering a similar question, held that where there is no provision in the trust instrument or the federal or state statutes allowing deduction from income on account of depreciation the deduction cannot be made. The Court of Appeals of the District of Columbia, in passing on the same question arising in the same trust, held likewise. Those two eases were taken by the Supreme Court, where, in the first of them, an opinion was filed reversing the decision of the Court of Appeals. Freuler, Adm’r of Whitcomb, v. Helvering, Com’r (Jan. 8, 1934), 54 S. Ct. 308, 78 L. Ed.-. The entire Supremo Court assumed the rule to bo as stated, a minority favoring affirmance of the Court of Appeals. But the majority excepted the ease’from the general rule upon the ground that too Superior Court in California, in an action arising to,ere in the same trust, hail passed upon the question of the duty of the trustee to set up a reserve for depreciation of such depreciable trust property as is here involved, holding it to be the duty of the trustee to set up1 such a fund out of the income. The Supreme Court held that, notwithstanding there was no such requirement in the trust instrument or in toe California statutes, nevertheless toe decision of toe California court had established toe law of that state to be that a fund for depreciation of such trust property should be set up out of income, and that this holding, as applied to a California trust, was binding upon the federal courts. The Whitcomb case was likewise disposed of upon the opinion in the Freuler case. Whitcomb v. Helvering, Com’r (Jan. 8, 1934) 54 S. Ct. 315, 78 L. Ed. -.
The order under review 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:
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sc_decisiondirection
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
LYNUMN v. ILLINOIS.
No. 9.
Argued February 19, 1963.
Decided March 25, 1963.
Jewel Lafontant argued the cause and filed a brief for petitioner.
William C. Wines, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William O. Clark, Attorney General, and Raymond S. Sarnow, A. Zola Groves and Edward A. Berman, Assistant Attorneys General.
Mr. Justice Stewart
delivered the opinion of the Court.
The petitioner was tried in the Criminal Court of Cook County, Illinois, on an indictment charging her with the unlawful possession and sale of marijuana. She was convicted and sentenced to the penitentiary for “not less than ten nor more than eleven years.” The judgment of conviction was affirmed on appeal by the Illinois Supreme Court. 21 Ill. 2d 63, 171 N. E. 2d 17. We granted cer-tiorari. 370 U. S. 933. For the reasons stated in this opinion, we hold that the petitioner’s trial did not meet the demands of due process of law, and we accordingly set aside the judgment before us.
On January 17, 1959, three Chicago police officers arrested James Zeno for unlawful possession of narcotics. They took him to a district police station. There they told him that if he “would set somebody up for them, they would go light” on him. He agreed to “cooperate” and telephoned the petitioner, telling her that he was coming over to her apartment. The officers and Zeno then went to the petitioner’s apartment house, and Zeno went upstairs to the third floor while the officers waited below. Some time later, variously estimated as from five to 20 minutes, Zeno emerged from the petitioner’s third floor apartment with a package containing a substance later determined to be marijuana. The officers took the package and told Zeno to return to the petitioner’s apartment on the pretext that he had left his glasses there. When the petitioner walked out into the hallway in response to Zeno’s call, one of the officers seized her and placed her under arrest. The officers and Zeno then entered the petitioner's apartment. The petitioner at first denied she had sold the marijuana to Zeno, insisting that while he was in her apartment Zeno had merely repaid a loan. After further conversations with the officers, however, she told them that she had sold the marijuana to Zeno.
The officers testified to this oral confession at the petitioner’s trial, and it is this testimony which, we now hold, fatally infected the petitioner’s conviction. The petitioner testified at the trial that she had not in fact sold any marijuana to Zeno, that Zeno had merely repaid a long-standing loan. She also testified, however, that she had told the officers on the day of her arrest that she had sold Zeno marijuana, describing the circumstances under which this statement was made as follows:
“I told him [Officer Sims] I hadn’t sold Zeno; I didn’t know anything about narcotics and I had no source of supply. He kept insisting I had a source of supply and had been dealing in narcotics. I kept telling him I did not and that I knew nothing about it. Then he started telling me I could get 10 years and the children could be taken away, and after I got out they would be taken away and strangers would have them, and if I could cooperate he would see they weren’t; and he would recommend leniency and I had better do what they told me if I wanted to see my kids again. The two children are three and four years old. Their father is dead; they live with me. I love my children very much. I have never been arrested for anything in my whole life before. I did not know how much power a policeman had in a recommendation to the State’s Attorney or to the Court. I did not know that a Court and a State’s Attorney are not bound by a police officer’s recommendations. I did not know anything about it. All the officers talked to me about my children and the time I could get for not cooperating. All three officers did. After that conversation I believed that if I cooperated with them and answered the questions the way they wanted me to answer, I believed that I would not be prosecuted. They had said I had better say what they wanted me to, or I would lose the kids. I said I would say anything they wanted me to say. I asked what I was to say. I was told to say ‘You must admit you gave Zeno the package’ so I said, ‘Yes, I gave it to him.’
“. . . The only reason I had for admitting it to the police was the hope of saving myself from going to jail and being taken away from my children. The statement I made to the police after they promised that they would intercede for me, the statements admitting the crime, were false.
“. . . My statement to the police officers that I sold the marijuana to Zeno was false. I lied to the police at that time. I lied because the police told me they were going to send me to jail for 10 years and take my children, and I would never see them again; so I agreed to say whatever they wanted me to say.”
The police officers did not deny that these were the circumstances under which the petitioner told them that she had sold marijuana to Zeno. To the contrary, their testimony largely corroborated the petitioner’s testimony. Officer Sims testified:
“I told her then that Zeno had been trapped and we asked him to cooperate; that he had made a phone call to her and subsequently had purchased the evidence from her. I told her then if she wished to cooperate, we would be willing to recommend to the State leniency in her case. At that time, she said, ‘Yes, I did sell it to him.’
“. . . While I was talking to her in the bedroom, she told me that she had children and she had taken the children over to her mother-in-law, to keep her children.
“Q. Did you or anybody in your presence indicate or suggest or say to her that her children would be taken away from her if she didn’t do what you asked her to do?
“Witness: I believe there was some mention of her children being taken away from her if she was arrested.
“The Court: By whom? Who made mention of it?
“The Witness: I believe Officer Bryson made that statement and I think I made the statement at some time during the course of our discussion that her children could be taken from her. We did not say if she cooperated they wouldn’t be taken. I don’t know whether Kobar said that to her or not. I don’t recall if Kobar said that to her or not.
“I asked her who the clothing belonged to. She said they were her children’s. I asked how many she had and she said 2. I asked her where they were or who took care of them. She said the children were over at the mother’s or mother-in-law. I asked her how did she take care of herself and she said she was on ADC. I told her that if we took her into the station and charged her with the offense, that the ADC would probably be cut off and also that she would probably lose custody of her children. That was not before I said if she cooperated, it would go light on her. It was during the same conversation.
"... I made the statement to her more than once; but I don’t know how many times, that she had been set up and if she cooperated we would go light with her.”
Officer Bryson testified:
“Miss Lynumn said she was thinking about her children and she didn’t want to go to jail. I was present and heard something pertaining to her being promised leniency if she would cooperate. I don’t know exactly who said it. I could have, myself, or Sims.”
It is thus abundantly clear that the petitioner’s oral confession was made only after the police had told her that state financial aid for her infant children would be cut off, and her children taken from her, if she did not “cooperate.” These threats were made while she was encircled in her apartment by three police officers and a twice convicted felon who had purportedly “set her up.” There was no friend or adviser to whom she might turn. She had had no previous experience with the criminal law, and had no reason not to believe that the police had ample power to carry out their threats.
We think it clear that a confession made under such circumstances must be deemed not voluntary, but coerced. That is the teaching of our cases. We have said that the question in epch case is whether the defendant’s will was overborne at the time he confessed. Chambers v. Florida, 309 U. S. 227; Watts v. Indiana, 338 U. S. 49, 52, 53; Leyra v. Denno, 347 U. S. 556, 558. If so, the confession cannot be deemed “the product of a rational intellect and a free will.” Blackburn v. Alabama, 361 U. S. 199, 208. See also Spano v. New York, 360 U. S. 315; Ashcraft v. Tennessee, 322 U. S. 143; and see particularly, Harris v. South Carolina, 338 U. S. 68, 70.
In this case counsel for the State of Illinois has conceded, at least for purposes of argument, that the totality of the circumstances disclosed by the record must be deemed to have combined to produce an impellingly coercive effect upon the petitioner at the time she told the officers she had sold marijuana to Zeno. But counsel for the State argues that we should nonetheless affirm the judgment before us upon either of two alternative grounds. It is contended first that the petitioner did not properly assert or preserve her federal constitutional claim in accord with established rules of Illinois procedure, and that her conviction therefore rests upon an adequate and independent foundation of state law. Secondly, it is urged that the petitioner’s conviction “does not rest in whole or in any part upon petitioner’s confession.” We find both of these contentions without validity.
It is true that the record in this case does not show that the petitioner explicitly asserted her federal constitutional claim in the trial court. And it is said that in Illinois the procedural rule is settled that where a constitutional claim which is based not upon the alleged unconstitutionality of a statute, but upon the facts of a particular case, is not clearly and appropriately raised in the trial court, the claim will not be considered on appeal by the Supreme Court of Illinois. In other words, such a claim of constitutional right, it is said, must be asserted in the trial court or it will be deemed upon appellate review to have been waived. People v. Touhy, 397 Ill. 19, 72 N. E. 2d 827.
If all we had to go on were the record in the Illinois trial and appellate courts, there would indeed be color to the claim of counsel for the State, and we would be squarely faced with the necessity of determining what the Illinois procedural rule actually is, and whether the rule constituted an adequate independent ground in support of the judgment affirming the petitioner’s conviction. But that is not necessary in this case. For there is here a short and complete answer to the respondent’s argument. Before acting upon the petition for certiorari, we entered an order directed to this very problem. The order accorded counsel for the petitioner “opportunity to secure a certificate from the Supreme Court of Illinois as to whether the judgment herein was intended to rest on an adequate and independent state ground, or whether decision of the federal claim . . . was necessary to the judgment rendered.” 368 U. S. 908. The answer of the Supreme Court of Illinois was unambiguous. On June 8, 1962, that court issued the following “Response to Request for Certificate”:
“In response to a request by counsel for the plaintiff in error we hereby certify that decision of the federal claim referred to in the order of the United States Supreme Court dated November 13, 1961, was necessary to our judgment in this case.”
We decline to search behind this certificate of the Supreme Court of Illinois.
The State’s contention that the petitioner’s conviction did not rest in any part upon her confession is quite without merit. The case was tried by the court without a jury. The record shows that twice during the trial the petitioner’s counsel moved to strike the testimony of the police officers as to the petitioner’s oral statement to them. On the first occasion the trial judge reserved a ruling on the motion “until the close of the State’s case.” When the motion was renewed, the record states that “[t]he motion to strike was denied.” Thus the record affirmatively shows that the evidence of the petitioner’s confession was admitted and considered by the trial court.
On appeal, the Supreme Court of Illinois, which has power independently to assess the evidence of guilt in a criminal case, People v. Ware, 23 Ill. 2d 59, 177 N. E. 2d 362, included in its summary of the prosecution’s evidence in this case the statement that “[t]he police officers also testified to certain admissions of guilt made to them by defendant on January 17, 1959.” 21 Ill. 2d, at 67, 171 N. E. 2d, at 19. Later in its opinion, the court stated:
“A review of the record does indicate, however, that strong suggestions of leniency were made to defendant subsequent to her arrest and prior to her admissions. Even in the absence of defendant’s statements, there is clear proof by Zeno and the police officers that defendant gave Zeno a package containing marijuana. Upon a review of the entire record, we are convinced that the evidence fully supports the judgment of the trial court. . . .” 21 Ill. 2d, at 68, 171 N. E. 2d, at 20.
While this statement is not free from ambiguity, we take it to express the view that even if the testimony as to the petitioner’s confession was erroneously admitted, the error was a harmless one in the light of other evidence of the petitioner’s guilt. That is an impermissible doctrine. As was said in Payne v. Arkansas, “this Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.” 356 U. S. 560, at 568. See Spano v. New York, 360 U. S. 315, 324; Watts v. Indiana, 338 U. S. 49, 50, n. 2; Haley v. Ohio, 332 U. S. 596, 599.
The judgment is set aside, and the case is remanded to the Supreme Court of Illinois for further proceedings not inconsistent with this opinion.
It is so ordered.
Officer Sims testified as follows: “He called Beatrice and said he had left his glasses in the apartment; she opened the door and as she came out into the hall, I was standing in the common hall, in the vestibule part with the door partly closed. As she walked down the hallway toward Zeno, I opened the door and stepped into the hallway. I told her she was under arrest and I grabbed her by her hands, both hands. At this point, I told her that she had been set up, that she had just made a sale and I showed her the package.”
Officer Sims testified: “I had complete physical possession of her two hands. I had turned her hands loose when we went into the apartment. I went in ahead of her. The door was still open. The apartment door was still ajar and I walked into the apartment and she followed me in. We were together but I was beside her. I believe Bryson and Zeno were behind her. She was between two police officers. We proceeded in that fashion to enter her apartment.”
Her testimony on this subject was as follows: “On January 17th Zeno called me. He owed me money, $23.00. I had loaned him this money about three months previously. He said he was being evicted and had money en route from his sister and if I could lend him the money, he could pay his rent; and I haven’t seen him since. That was three months previously. On this day he told me on the phone he was sorry he had not been around to pay the money but he had been in pretty bad shape. But now he had come into some money and would come and pay me.
. . On that day I did not give to Zeno, nor did Mr. Zeno ask me in the telephone conversation in which he said he was going to pay me the money he owed me, he did not say anything about having a can ready for him or anything like that.
“He said here is the money I owe you. He owed me $23.00. When he gave me the money, he gave me $28.00. I asked him what the $5.00 was for and he said it was because I had it so long. I did not say to Mr. Zeno let’s go into the kitchen. Nothing like that. I did not have any transaction with him in the kitchen nothing even like that.”
It is difficult, however, to perceive how the admission of evidence of the confession could be considered harmless. The only other evidence of substance against the petitioner was that given by Zeno, a twice convicted felon who testified that he was eager in his own self-interest to cooperate with the police by “setting up” someone. While it was undisputed that Zeno was in possession of the package of marijuana when he emerged from the petitioner’s apartment, it was far from clear that Zeno obtained the marijuana from the petitioner. Zeno was out of the police officers’ sight for a period of from five to 20 minutes, and there were other apartments in the building where Zeno might have obtained the package.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_issue_7
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G
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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.
AMERICAN HOSPITAL ASSOCIATION v. NATIONAL LABOR RELATIONS BOARD et al.
No. 90-97.
Argued February 25, 1991
Decided April 23, 1991
Stevens, J., delivered the opinion for a unanimous Court.
James D. Holzhauer argued the cause for petitioner. With him on the briefs were Kenneth S. Geller, Arthur R. Miller, and Rhonda A. Rhodes.
Deputy Solicitor General Shapiro argued the cause for respondents. With him on the brief for respondent National Labor Relations Board were Solicitor General Starr, Stephen L. Nightingale, Robert E. Allen, Norton J. Come, and Linda Sher. Woody N. Peterson, David Silberman, Laurence Gold, Helen Morgan, Richard Griffin, Michael Fanning, Miriam Gafni, James Grady, Jonathan Hiatt, Richard Kirschner, Bruce Miller, Patrick Scanlon, and George Murphy filed a brief for respondents American Nurses Association et al.
Briefs of amici curiae urging reversal were filed for the Fairfax Hospital System, the Maryland Hospital Association, Inc., and the Virginia Hospital Association by John G. Kruchko and Paul M. Lusky; for the California Association of Hospitals and Health Systems et al. by Robert M. Stone and Dana D. Howells; for the Greater Cincinnati Hospital Council by Laivrence J. Barty and Frank H. Stewait; for the Hospital Association of Pennsylvania et al. by John E. Lyncheski and Michael J. Reilly; for the Society for Human Resource Management by Glen D. Nager; for the Missouri Hospital Association by E. J. Holland, Jr.; for St. Francis Hospital, Inc., of Memphis by Jeff Weintraub; and for William Beaumont Hospital et al. by Theodore R. Oppenvall.
Laivrence Rosenziveig filed a brief for the Union of American Physicians and Dentists as amicus curiae urging affirmance.
Justice Stevens
delivered the opinion of the Court.
For the first time since the National Labor Relations Board (Board or NLRB) was established in 1935, the Board has promulgated a substantive rule defining the employee units appropriate for collective bargaining in a particular line of commerce. The rule is applicable to acute care hospitals and provides, with three exceptions, that eight, and only eight, units shall be appropriate in any such hospital. The three exceptions are for cases that present extraordinary circumstances, cases in which nonconforming units already exist, and cases in which labor organizations seek to combine two or more of the eight specified units. The extraordinary circumstances exception applies automatically to hospitals in which the eight-unit rule will produce a unit of five or fewer employees. See 29 CFR § 103.30 (1990).
Petitioner, American Hospital Association, brought this action challenging the facial validity of the rule on three grounds: First, petitioner argues that § 9(b) of the National Labor Relations Act (NLRA or Act) requires the Board to make a separate bargaining unit determination “in each case” and therefore prohibits the Board from using general rules to define bargaining units; second, petitioner contends that the rule that the Board has formulated violates a congressional admonition to the Board to avoid the undue proliferation of bargaining units in the health care industry; and, finally, petitioner maintains that the rule is arbitrary and capricious.
The United States District Court for the Northern District of Illinois agreed with petitioner’s second argument and enjoined enforcement of the rule. 718 F. Supp. 704 (1989). The Court of Appeals found no merit in any of the three arguments and reversed. 899 F. 2d 651 (CA7 1990). Because of the importance of the case, we granted certiorari, 498 U. S. 894 (1990). We now affirm.
I
Petitioner’s first argument is a general challenge to the Board’s rulemaking authority in connection with bargaining unit determinations based on the terms of the NLRA, 49 Stat. 449, 29 U. S. C. §151 et seq., as originally enacted in 1935. In § 1 of the NLRA Congress made the legislative finding that the “inequality of bargaining power” between unorganized employees and corporate employers had adversely affected commerce and declared it to be the policy of the United States to mitigate or eliminate those adverse effects “by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” 29 U. S. C. § 151. The central purpose of the Act was to protect and facilitate employees’ opportunity to organize unions to represent them in collective-bargaining negotiations.
Sections 3, 4, and 5 of the Act created the Board and generally described its powers. §§ 153-155. Section 6 granted the Board the “authority from time to time to make, amend, and rescind . . . such rules and regulations as may be necessary to carry out the provisions” of the Act. § 156. This grant was unquestionably sufficient to authorize the rule at issue in this case unless limited by some other provision in the Act.
Petitioner argues that § 9(b) provides such a limitation because this section requires the Board to determine the appropriate bargaining unit “in each case.” § 159(b). We are not persuaded. Petitioner would have us put more weight on these three words than they can reasonably carry.
Section 9(a) of the Act provides that the representative “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes” shall be the exclusive bargaining representative for all the employees in that unit. § 159(a). This section, read in light of the policy of the Act, implies that the initiative in selecting an appropriate unit resides with the employees. Moreover, the language suggests that employees may seek to organize “a unit” that is “appropriate” — not necessarily the single most appropriate unit. See, e. g., Trustees of Masonic Hall and Asylum Fund v. NLRB, 699 F. 2d 626, 634 (CA2 1983); State Farm Mutual Automobile Ins. Co. v. NLRB, 411 F. 2d 356, 358 (CA7) (en banc), cert. denied, 396 U. S. 832 (1969); Friendly Ice Cream Corp. v. NLRB, 705 F. 2d 570, 574 (CA1 1983); Local 627, Int’l Union of Operating Engineers v. NLRB, 194 U. S. App. D. C. 37, 41, 595 F. 2d 844, 848 (1979); NLRB v. Western & Southern Life Ins. Co., 391 F. 2d 119, 123 (CA3), cert. denied, 393 U. S. 978 (1968). Thus, one union might seek to represent all of the employees in a particular plant, those in a particular craft, or perhaps just a portion thereof.
Given the obvious potential for disagreement concerning the appropriateness of the unit selected by the union seeking recognition by the employer — disagreements that might involve rival unions claiming jurisdiction over contested segments of the work force as well as disagreements between management and labor — § 9(b) authorizes the Board to decide whether the designated unit is appropriate. See Hearings on S. 1958 before the Senate Committee on Education and Labor, p. 82 (1935) (hereinafter Hearings), 1 Legislative History of the National Labor Relations Act 1935, p. 1458 (hereinafter Legislative History) (testimony of Francis Biddle, Chairman of Board); H. R. Rep. No. 972, 74th Cong., 1st Sess., 20 (1935), 2 Legislative History 2976. Section 9(b) provides:
“The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.” (Emphasis added.)
Petitioner reads the emphasized phrase as a limitation on the Board’s rulemaking powers. Although the contours of the restriction that petitioner ascribes to the phrase are murky, petitioner’s reading of the language would prevent the Board from imposing any industry-wide rule delineating the appropriate bargaining units. We believe petitioner’s reading is inconsistent with the natural meaning of the language read in the context of the statute as a whole.
The more natural reading of these three words is simply to indicate that whenever there is a disagreement about the appropriateness of a unit, the Board shall resolve the dispute. Under this reading, the words “in each case” are synonymous with “whenever necessary” or “in any case in which there is a dispute.” Congress chose not to enact a general rule that would require plant unions, craft unions, or industry-wide unions for every employer in every line of commerce, but also chose not to leave the decision up to employees or employers alone. Instead, the decision “in each case” in which a dispute arises is to be made by the Board.
In resolving such a dispute, the Board’s decision is presumably to be guided not simply by the basic policy of the Act but also by the rules that the Board develops to circumscribe and to guide its discretion either in the process of case-by-case adjudication or by the exercise of its rulemaking authority. The requirement that the Board exercise its discretion in every disputed case cannot fairly or logically be read to command the Board to exercise standardless discretion in each case. As a noted scholar on administrative law has observed: “[T]he mandate to decide ‘in each case’ does not prevent the Board from supplanting the original discretionary chaos with some degree of order, and the principal instruments for regularizing the system of deciding ‘in each case’ are classifications, rules, principles, and precedents. Sensible men could not refuse to use such instruments and a sensible Congress would not expect them to.” K. Davis, Administrative Law Text, § 6.04, p. 145 (3d ed. 1972).
This reading of the “in each case” requirement comports with our past interpretations of similar provisions in other regulatory statutes. See United States v. Storer Broadcasting Co., 351 U. S. 192, 205 (1956); FPC v. Texaco, Inc., 377 U. S. 33, 41-44 (1964); Heckler v. Campbell, 461 U. S. 458, 467 (1983). These decisions confirm that, even if a statutory scheme requires individualized determinations, the decision-maker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority.
Even petitioner acknowledges that “the Board could adopt rules establishing general principles to guide the required case-by-case bargaining unit determinations.” Brief for Petitioner 19. Petitioner further acknowledges that the Board has created many such rules in the half-century during which it has adjudicated bargaining unit disputes. Reply Brief for Petitioner 8-11. Petitioner contends, however, that a rule delineating the appropriate bargaining unit for an entire industry is qualitatively different from these prior rules, which at most established rebuttable presumptions that certain units would be considered appropriate in certain circumstances.
We simply cannot find in the three words “in each case” any basis for the fine distinction that petitioner would have us draw. Contrary to petitioner’s contention, the Board’s rule is not an irrebuttable presumption; instead, it contains an exception for “extraordinary circumstances.” Even if the rule did establish an irrebuttable presumption, it would not differ significantly from the prior rules adopted by the Board. As with its prior rules, the Board must still apply the rule “in each case.” For example, the Board must decide in each case, among a host of other issues, whether a given facility is properly classified as an acute care hospital and whether particular employees are properly placed in particular units.
Our understanding that the ordinary meaning of the statutory language cannot support petitioner’s construction is reinforced by the structure and the policy of the NLRA. As a matter of statutory drafting, if Congress had intended to curtail in a particular area the broad rulemaking authority granted in § 6, we would have expected it to do so in language expressly describing an exception from that section or at least referring specifically to the section. And, in regard to the Act’s underlying policy, the goal of facilitating the organization and recognition of unions is certainly served by rules that define in advance the portions of the work force in which organizing efforts may properly be conducted.
The sparse legislative history of the provision affords petitioner no assistance. That, history reveals that the phrase was one of a group of “small amendments” suggested by the Secretary of Labor “for the sake of clarity.” See Senate Committee on Education and Labor, Memorandum Comparing S. 2926 and S. 1958, 74th Cong., 1st Sess., 9 (Comm. Print 1935), 1 Legislative History 1332, Hearings, 1442,1445; Hearings on H. R. 6288 before the House Committee on Labor, 74th Cong., 1st Sess., 283-284 (1935), 2 Legislative History 2757-2758. If this amendment had been intended to place the important limitation on the scope of the Board’s rulemaking powers that petitioner suggests, we would expect to find some expression of that intent in the legislative history. Cf. Harrison v. PPG Industries, Inc., 446 U. S. 578, 600-601 (1980) (Rehnquist, J., dissenting).
The only other relevant legislative history adds nothing to the meaning conveyed by the text that was enacted. Petitioner relies on a comment in the House Committee on Labor Report that the matter of the appropriate unit “is obviously one for determination in each individual case, and the only possible workable arrangement is to authorize the impartial government agency, the Board, to make that determination.” H. R. Rep. No. 972, 74th Cong., 1st Sess., 20 (1935), 2 Legislative History 2976. This comment, however, simply restates our reading of the statute as requiring that the Board decide the appropriate unit in every case in which there is a dispute. The Report nowhere suggests that the Board cannot adopt generally applicable rules to guide its “determination in each individual case.”
In sum, we believe that the meaning of §9(b)’s mandate that the Board decide the appropriate bargaining unit “in each case” is clear and contrary to the meaning advanced by petitioner. Even if we could find any ambiguity in § 9(b) after employing the traditional tools of statutory construction, we would still defer to the Board’s reasonable interpretation of the statutory text. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). We thus conclude that § 9(b) does not limit the Board’s rulemaking authority under § 6.
I — I I — I
Consideration of petitioner’s second argument requires a brief historical review of the application of federal labor law to acute care hospitals. Hospitals were “employers” under the terms of the NLRA as enacted in 1935, but in 1947 Congress excepted not-for-profit hospitals from the coverage of the Act. See 29 U. S. C. § 152(2) (1970 ed.) (repealed, 1974). In 1960, the Board decided that proprietary hospitals should also be excepted, see Flatbush General Hospital, 126 N. L. R. B. 144, 145, but this position was reversed in 1967, see Butte Medical Properties, 168 N. L. R. B. 266, 268.
In 1973, Congress addressed the issue and considered bills that would have extended the Act’s coverage to all private health care institutions, including not-for-profit hospitals. The proposed legislation was highly controversial, largely because of the concern that labor unrest in the health care industry might be especially harmful to the public. Moreover, the fact that so many specialists are employed in the industry created the potential for a large number of bargaining units, in each of which separate union representation might multiply management’s burden in negotiation and might also increase the risk of strikes. Motivated by these concerns, Senator Taft introduced a bill that would have repealed the exemption for hospitals, but also would have placed a limit of five on the number of bargaining units in nonprofit health care institutions. S. 2292, 93d Cong., 1st Sess. (1973). Senator Taft’s bill did not pass.
In the second session of the same Congress, however, the National Labor Relations Act Amendments of 1974 were enacted. See 88 Stat. 395. These amendments subjected all acute care hospitals to the coverage of the Act but made no change in the Board’s authority to determine the appropriate bargaining unit in each case. See ibid. Both the House and the Senate Committee Reports on the legislation contained this statement:
“EFFECT ON EXISTING LAW
“Bargaining Units
“Due consideration should be given by the Board to preventing proliferation of bargaining units in the health care industry. In this connection, the Committee notes with approval the recent Board decisions in Four Seasons Nursing Center, 208 NLRB No. 50, 85 LRRM 1093 (1974), and Woodland Park Hospital, 205 NLRB No. 144, 84 LRRM 1075 (1973), as well as the trend toward broader units enunciated in Extendicare of West Virginia, 203 NLRB No. 170, 83 LRRM 1242 (1973).
See S. Rep. No. 93-766, p. 5 (1974); H. R. Rep. No. 93-1051, pp. 6-7 (1974).
Petitioner does not — and obviously could not — contend that this statement in the Committee Reports has the force of law, for the Constitution is quite explicit about the procedure that Congress must follow in legislating. Nor, in view of the fact that Congress refused to enact the Taft bill that would have placed a limit of five on the number of hospital bargaining units, does petitioner argue that eight units necessarily constitute proliferation. Rather, petitioner’s primary argument is that the admonition, when coupled with the rejection of a general rule imposing a five-unit limit, evinces Congress’ intent to emphasize the importance of the “in each case” requirement in § 9(b).
We find this argument no more persuasive than petitioner’s reliance on § 9(b) itself. Assuming that the admonition was designed to emphasize the requirement that the Board determine the appropriate bargaining unit in each case, we have already explained that the Board’s rule does not contravene this mandate. See Part I, supra.
Petitioner also suggests that the admonition “is an authoritative statement of what Congress intended when it extended the Act’s coverage to include nonproprietary hospitals.” Brief for Petitioner 30. Even if we accepted this suggestion, we read the admonition as an expression by the Committees of their desire that the Board give “due consideration” to the special problems that “proliferation” might create in acute care hospitals. Examining the record of the Board’s rulemaking proceeding, we find that it gave extensive consideration to this very issue. See App. 20, 78-84, 114, 122, 131, 140, 158-159, 191-194, 246-254.
In any event, we think that the admonition in the Committee Reports is best understood as a form of notice to the Board that if it did not give appropriate consideration to the problem of proliferation in this industry, Congress might respond with a legislative remedy. So read, the remedy for noncompliance with the admonition is in the hands of the body that issued it. Cf. Public Employees Retirement System of Ohio v. Betts, 492 U. S. 158, 168 (1989) (legislative history that cannot be tied to the enactment of specific statutory language ordinarily carries little weight injudicial interpretation of the statute). If Congress believes that the Board has not given “due consideration” to the issue, Congress may fashion an appropriate response.
III
Petitioners final argument is that the rule is arbitrary and capricious because “it ignores critical differences among the more than 4,000 acute-care hospitals in the United States, including differences in size, location, operations, and workforce organization.” Brief for Petitioner 39. Petitioner supports this argument by noting that in at least one earlier unit determination, the Board had commented that the diverse character of the health care industry precluded generalizations about the appropriateness of any particular bargaining unit. See St. Francis Hospital, 271 N. L. R. B. 948, 953, n. 39 (1984), remanded sub nom. Electrical Workers v. NLRB, 259 U. S. App. D. C. 168, 814 F. 2d 697 (1987).
The Board responds to this argument by relying on the extensive record developed during the rulemaking proceedings, as well as its experience in the adjudication of health care cases during the 13-year period between the enactment of the health care amendments and its notice of proposed rule-making. Based on that experience, the Board formed the “considered judgment” that “acute care hospitals do not differ in substantial, significant ways relating to the appropriateness of units.” App. 188-189. Moreover, the Board argues, the exception for “extraordinary circumstances” is adequate to take care of the unusual case in which a particular application of the rule might be arbitrary.
We do not believe that the challenged rule is inconsistent with the Board’s earlier comment on diversity in the health care industry. The comment related to the entire industry whereas the rule does not apply to many facilities, such as nursing homes, blood banks, and outpatient clinics. See St. Francis, 271 N. L. R. B., at 953, n. 39. Moreover, the Board’s earlier discussion “anticipate^] that after records have been developed and a number of cases decided from these records, certain recurring factual patterns will emerge and illustrate which units are typically appropriate.” See ibid.
Given the extensive notice and comment rulemaking conducted by the Board, its careful analysis of the comments that it received, and its well-reasoned justification for the new rule, we would not be troubled even if there were inconsistencies between the current rule and prior NLRB pronouncements. The statutory authorization “from time to time to make, amend, and rescind” rules and regulations expressly contemplates the possibility that the Board will reshape its policies on the basis of more information and experience in the administration of the Act. See 29 U. S. C. § 156. The question whether the Board has changed its view about certain issues or certain industries does not undermine the validity of a rule that is based on substantial evidence and supported by a “reasoned analysis.” See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 42, 67 (1983).
The Board’s conclusion that, absent extraordinary circumstances, “acute care hospitals do not differ in substantial, significant ways relating to the appropriateness of units,” App. 189, was based on a “reasoned analysis” of an extensive record. See 463 U. S., at 57. The Board explained that diversity among hospitals had not previously affected the results of bargaining unit determinations and that diversification did not make rulemaking inappropriate. See App. 55-59. The Board justified its selection of the individual bargaining units by detailing the factors that supported generalizations as to the appropriateness of those units. See, e. g., id., at 93-94, 97, 98, 101, 118-120, 123-129, 133-140.
The fact that petitioner can point to a hypothetical case in which the rule might lead to an arbitrary result does not render the rule “arbitrary or capricious.” This case is a challenge to the validity of the entire rule in all its applications. We consider it likely that presented with the case of an acute care hospital to which its application would be arbitrary, the Board would conclude that “extraordinary circumstances” justified a departure from the rule. See 29 CFR §§ 103.30(a), (b) (1990). Even assuming, however, that the Board might decline to do so, we cannot conclude the the entire rule is invalid on its face. See Illinois Commerce Commission v. Interstate Commerce Commission, 249 U. S. App. D. C. 389, 393-394, 776 F. 2d 355, 359-360 (1985) (Scalia, J.); Aberdeen & Rockfish R. Co. v. United States, 682 F. 2d 1092, 1105 (CA5 1982); cf. FDIC v. Mallen, 486 U. S. 230, 247 (1988) (“A statute such as this is not to be held unconstitutional simply because it may be applied in an arbitrary or unfair way in some hypothetical case not before the Court”).
In this opinion, we have deliberately avoided any extended comment on the wisdom of the rule, the propriety of the specific unit determinations, or the importance of avoiding work stoppages in acute care hospitals. We have pretermitted such discussion not because these matters are unimportant but because they primarily concern the Board’s exercise of its authority rather than the limited scope of our review of the legal arguments presented by petitioner. Because we find no merit in any of these legal arguments, the judgment of the Court of Appeals is affirmed.
It is so ordered.
“*By our reference to Extendicare, we do not necessarily approve all of the holdings of that decision.”
We further note that the Board’s rule is fully consistent with the two NLRB case holdings expressly approved by the admonition. In one of those cases, the Board refused to approve a bargaining unit composed of only x-ray technicians and instead ruled that all technical workers should be grouped together. See Woodland Park Hospital, Inc., 205 N. L. R. B. 888-889 (1973). In the other case, the Board refused to permit a unit of only two employees. See Four Seasons Nursing Center of Joliet, 208 N. L. R. B. 403 (1974). The current rule authorizes a single unit for all technical workers and prohibits units of fewer than five employees. See 29 CFR § 103.30(a) (1990).
Question: What is the issue of the decision?
A. arbitration (in the context of labor-management or employer-employee relations) (cf. arbitration)
B. union antitrust: legality of anticompetitive union activity
C. union or closed shop: includes agency shop litigation
D. Fair Labor Standards Act
E. Occupational Safety and Health Act
F. union-union member dispute (except as pertains to union or closed shop)
G. labor-management disputes: bargaining
H. labor-management disputes: employee discharge
I. labor-management disputes: distribution of union literature
J. labor-management disputes: representative election
K. labor-management disputes: antistrike injunction
L. labor-management disputes: jurisdictional dispute
M. labor-management disputes: right to organize
N. labor-management disputes: picketing
O. labor-management disputes: secondary activity
P. labor-management disputes: no-strike clause
Q. labor-management disputes: union representatives
R. labor-management disputes: union trust funds (cf. ERISA)
S. labor-management disputes: working conditions
T. labor-management disputes: miscellaneous dispute
U. miscellaneous union
Answer:
|
songer_state
|
07
|
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".
Fred K. WAGONER, Jack R. Wagoner, Donald L. Wagoner and Howard R. Wagoner, co-partners, doing business under the firm name and style of Wagoner Construction Company, Appellants, v. MOUNTAIN SAVINGS AND LOAN ASSOCIATION, a corporation, Appellee.
No. 6961.
United States Court of Appeals Tenth Circuit.
Dec. 3, 1962.
No appearance for appellants.
C. Blake Hiester, Denver, Colo. (Hiester, Tanner & Clanahan, and Bill Earl Tom, Denver, Colo., were with him on the brief), for appellee.
Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.
LEWIS, Circuit Judge.
Appellants-plaintiffs seek relief from an adverse and summary judgment entered by the District Court for the District of Colorado upon claim that the existence of disputed facts prevent the application of Rule 56, F.R.C.P.
Plaintiffs’ original complaint was filed May 12, 1959, and contained four causes of action; it was dismissed with leave to amend. A first amended complaint was similarly dismissed. A second amended complaint followed and, upon motion of appellee-defendant for summary judgment, was dismissed as to the third and fourth causes alleged because barred by the.applicable statute of limitation; the trial court held in abeyance a ruling upon the first two causes of action pending compliance by plaintiffs with an order of the court requiring clarification of plaintiffs’ counter-affidavits filed in opposition to the motion for summary judgment. Such order was premised upon the following procedural background.
In the first and second causes plaintiffs alleged:
(1) That plaintiffs entered into an oral and written agreement with defendant on or about June 29, 1955, whereby it was agreed that plaintiffs would convey to corporations controlled by the defendant certain real property in Boulder County, Colorado, in exchange for defendant’s payment of outstanding obligations of the construction company incurred in connection with another property development. It was further agreed that the defendant would advance loans for the construction of homes upon the property conveyed by the agreement and would have the property reeonveyed as needed for its development at the same consideration, a total amount of approximately $85,000. It is alleged that defendant has refused to provide the construction loans and to reconvey the property.
(2) That in a similar transaction on July 24, 1955, plaintiffs conveyed certain real property and water rights in Boulder to another corporation in exchange for defendant’s promise to pay $120,000, advance construction loans, and reconvey the property as construction progressed. It is alleged that defendant has paid only $96,000 and has refused to provide loans or reconvey the property.
Defendant denied the agreements although admitting that several loans were made to the plaintiffs. In pre-trial conference plaintiffs admitted that the only portion of the agreements in writing were the deeds of conveyance.
Defendant also pleaded the statute of frauds and further alleged that two general releases were executed by plaintiffs on July 28, 1955, and June 19, 1956. These releases, supported by affidavits and copies, formed the basis for defendant’s motion for summary judgment as to plaintiffs’ first two alleged claims. In opposition to the motion plaintiffs filed affidavits alleging that the releases were executed without their knowledge or consent and without consideration. The order of the trial court requiring clarification was directed to the generalities of these affidavits and required plaintiffs:
“ * * * to file another or other affidavits in opposition to defendant Mountain Savings and Loan Association’s Motion for Summary Judgment within 15 days from the date of this Order, clarifying the statements made by plaintiffs in Paragraph 3 of plaintiffs’ affidavit in opposition to Motion by defendant Mountain Savings and Loan Association for Summary Judgment, now on file herein, to-wit:
“ ‘Affiants and each of them allege that the said execution of said release as aforesaid was made without their knowledge and consent and without any consideration therefore.’
“stating specifically what occurred with respect to the execution of these releases and stating with particularity why plaintiffs did not know that the releases were being executed or why they were executed without their knowledge and consent, also stating with particularity why the execution of said releases were made without any consideration therefor.”
Holding that the affidavit of the plaintiff, Fred K. Wagoner, filed in response to the court’s order did not constitute legal compliance with the order and did not show a disputed fact affecting plaintiffs’ alleged first and second causes, the trial court entered summary judgment in favor of defendant. This appeal followed and questions only the correctness of the trial court’s judgment upon the first and second causes claimed by plaintiffs.
The Wagoner affidavit stated:
“At no time was there any agreement between this affiant or any of the other plaintiffs and defendant, Mountain Savings and Loan Association, to give the latter a general release on or about the 28th of July, 1955; that any purported release * * * were (sic) obtained by trick and device and without the knowledge of this affiant or of any of said plaintiffs.
“It is inconceivable that this affiant or any of the plaintiffs would execute such release due to the fact that only a few days before plaintiffs borrowed the sum of $120,000 from defendant, Mountain Savings and Loan Association as shown by Exhibit “C” of plaintiffs’ amended complaint. And affiant alleges that at the time of said purported release was executed (sic), * * * Mountain Savings and Loan Association, owed to plaintiffs the sum of $120,-000 or thereabouts. That the defendant Mountain Savings and Loan Association now owes to plaintiffs the sum of $24,000, as evidenced by said loans aforesaid.
"Affiant further deposes and says that the said Mountain Savings and Loan Association did not pay off all obligations of plaintiffs as alleged in their purported release, Exhibit 'A’, ‘Whereas, certain excess proceeds of said loans will be used to pay off obligations of the undersigned’; in this connection, affiant alleges that there were at the time said purported release was executed, bills and obligations owing by the plaintiffs in the sum of $8,000 or thereabouts and that this affiant and Don L. Wagoner negotiated loans upon their respective homes to pay off said obligations.
“Affiant further deposes and says that he nor any of the plaintiffs have any knowledge whatsoever of the execution of said purported release and that the same, if executed, was executed without any consideration whatsoever therefore.
*****
“Affiant further deposes and says that on or about the 1st day of July 1956, plaintiffs and defendant, Mountain Savings and Loan Association, entered into an agreement wherein and whereby defendant, Mountain Savings and Loan Association agreed to provide plaintiffs with loans with which to purchase lots * * *
“Affiant further sayeth that six of said loans had been approved and were to have been executed by the plaintiffs and said defendant, Mountain Savings and Loan Association, and were ready to be closed whereupon said defendant informed plaintiffs that they would not consummate said loans nor provide any additional loans unless they, plaintiffs, executed the release [of 1956] * * *
“That after said release was executed, defendant, Mountain Savings and Loan Association, has failed, refused and does now fail and refuse to make any further loans to plaintiffs as aforesaid although the plaintiffs have been ready and willing to accept such loans.
“Affiant further deposes and says that there was no consideration for the execution of said release.
“Affiant further sayeth that in order to show the true circumstances under which the said purported releases were executed, it is necessary to have further discovery proceedings and other depositions before trial.”
It is clear that either of the releases offered by defendant as a basis for summary judgment is a complete bar to plaintiffs’ action unless the validity of the releases can be successfully questioned. Guldager v. Rockwell, 14 Colo. 459, 24 P. 556; Kruger v. Smith, 82 Colo. 380, 260 P. 97. The burden of proving that the release was invalid or void must be borne by the party which would avoid its operation, Denver & R. G. R. Co. v. Ptolemy, 69 Colo. 69, 169 P. 541. The releases show on their face that they were executed by all of the appellants before a notary public. In each release consideration was formally recited to be “ten dollars and other good and valuable consideration,” the 1955 release amplifying that the Mountain Savings and Loan Association had heretofore accommodated the appellants in making loans, that the Roxwood Company had assumed obligations of the appellants, and that “certain excess proceeds of said loans will be used to pay off obligations” of the appellants.
The Supreme Court of Colorado has held that a valid contract may ensue when the only consideration shown on the face of the document is nominal and that the recital of a consideration of ten dollars and other good and valuable consideration must stand in the absence of contrary evidence, Burch v. Burch, 145 Colo. 125, 358 P.2d 1011. Further it has been held that a promise is enforceable if supported by a past consideration rendered at the promissor’s request, Sargent v. Crandall, 143 Colo. 199, 352 P.2d 676.
Summary judgment is the proper procedural instrument to bring to the front of formal pleadings the legal effect of the releases. The very purpose of summary proceedings is to pierce the sham of false generality of claims. The futility of a trial upon primary issues is apparent if the validity of the releases is to be ultimately determinative of the case. And the compulsion of Rule 56 cannot be thwarted by the allegation of conclusion or general denial. Bruce Construction Corp. et al. v. United States for use of Westinghouse Electric Supply Co., 5 Cir., 242 F.2d 873; Engl v. Aetna Life Ins. Co., 2 Cir., 139 F.2d 469; 6 Moore’s Federal Practice, page 2255 § 56.17.
The correctness of the trial court’s ruling is thus clear. Plaintiffs allege that they had no knowledge of the-releases (but do not deny the acknowledgement of their signatures to them);. that the releases had been obtained by-trick and device (but they offered no-statement which would indicate that evidence of this charge might be produced at trial); that no consideration supported the agreements (ignoring the recitals of' the releases); that there was a failure-of consideration (regardless of the fact that the failures alleged cannot be brought within the language of the instruments) .
Plaintiffs, although urged to do so, have offered no- issue of fact in avoidance-of the releases and the judgment of the-trial court is thus 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:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
Herman E. SAYGER, tr/as Sayger Broadcasting Company, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.
No. 16956.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 13, 1962.
Decided Dec. 13, 1962.
Mr. Michael H. Bader, Washington, D. C., with whom Mr. Andrew G. Haley, Washington, D. C., was on the brief, for appellant.
Mr. Herman I. Branse, Counsel, Federal Communications Commission, with whom Messrs. Max D. Paglin, General Counsel, and Daniel R. Ohlbaum, Associate General Counsel, Federal Communications Commission, were on the brief, for appellee. Mrs. Ruth V. Reel, Counsel, Federal Communications Commission, also entered an appearance for appellee.
Before Bastían, Burger and Wright, Circuit Judges.
WRIGHT, Circuit Judge.
Alleging that the Commission arbitrarily refused to waive its ten per cent interference rule in denying its application for a new full-time standard broadcast station to be located at Tiffin, Ohio, appellant asks reversal of the Commission’s order. We find there is substantial evidence in the record viewed as a whole to support the Commission’s action.
Whenever two or more radio stations operate simultaneously on the same or closely adjacent frequencies, depending on such factors as distance between and power of the stations, there will be interference in varying degrees. The ten per cent rule represents the Commission’s attempt to achieve a proper balance between excessive interference and too restricted use of available frequencies. The rule with reference to daytime stations provides, in effect, that a standard broadcast station may not be assigned to a channel where the interference from stations assigned to the same or closely adjacent channels will affect more than ten per cent of the population in the proposed station’s normally protected primary service area. While in determining the public interest the ten per cent requirement may not be applied mechanically, § 3.28(d) was not intended to be merely a guide, but a “fixed, certain rule” to be waived “only in unusual circumstances in which it is clearly demonstrated that the public interest requires such exceptional action.” It has been so applied by the Commission.
Appellant does not challenge the Commission’s basic findings. In addition to providing a second local daytime service for Tiffin, appellant’s proposal would give that community its only local nighttime station, including reception for some 2,000 people in the business and industrial area of Tiffin who are presently without a primary radio signal at night. The balance of Tiffin receives primary service from two stations at night and five stations during the day. Appellant’s proposed station would provide primary service for a 2,480-square-mile area with a population of 211,378. Other than Tiffin, this area now receives primary service from at least eleven stations by day and three stations by night. Unfortunately, in providing its service, appellant’s station would suffer 17.5 per cent daytime interference, while at night there would be a 67.3 per cent population' loss. Since appellant would' provide Tiffin with its first local nighttime service, the nighttime interference is not disqualifying under the rule, but the Commission denied appellant’s application because its daytime interference was more than ten per cent and there was no showing of the unusual circumstances required for a waiver of this rule.
At the time appellant’s application was filed, Tiffin, Ohio, was without a local standard broadcast radio station, although an application to provide such service on a different frequency during the daytiitfe, filed by the Malrite Broadcasting Company, was pending. Appellant unsuccessfully sought consolidation of the hearings on the two applications, asserting that otherwise its application, particularly insofar as it asked for a waiver of the ten per cent rule, would be prejudiced by the prior grant of a construction permit to Malrite. The Commission denied the consolidation and subsequently granted the Malrite application. In denying appellant’s application, the Commission adverted to the fact that one local standard broadcast daytime radio station had already been authorized for Tiffin.
Appellant maintains that the Commission erred in denying its motion for a comparative hearing under the Ashbaeker doctrine, and compounded this error by using the fact that the Malrite application had been granted as a basis for denying its own. Appellant failed to seek judicial review of the grant to Malrite. Now it seeks collaterally in these proceedings to attack it. This it may not do. Now can it assert the invalidity of the Commission’s action here because of its grant to Malrite. The Commission’s action here is tested only by the public interest, free from any inequity that may have devolved upon appellant because of the Commission’s prior action with reference to the Malrite application. As of the time the Commission acted on appellant’s application, Tiffin did, in fact, have a local daytime standard broadcast station. And in determining the public interest, the Commission was required to consider that fact in passing on appellant’s application.
Appellant also argues that the Commission failed to consider its evidence as to the need of a nighttime station in Tiffin. It relies on the Commission’s statement in its opinion that such need “can be presumed.” But this statement does not necessarily mean that the Commission did not consider the evidence bearing on this necessity. Neither the Commission nor its examiner was required to recite the evidence in their findings. Moreover, the Commission specifically took note of the growing size and importance of Tiffin by granting in substance appellant’s Exceptions 1 and 2 to the report of its examiner. Any community which does not have a local station needs one day and night. The Commission simply took note of this obvious fact in presuming that need.
The delicate balance in the public interest to be achieved by the assignment of radio frequencies is a matter committed to the expertise of the Commission. This record shows no arbitrary or capricious action, or violation of procedural safeguards, on the part of the Commission in complying with its obligation under the Act.
Affirmed.
. The Commission’s rule, § 3.28(d), 47 C.F.R. § 3.28(d), reads:
“Upon showing that a need exists, a Class II, III or IV station may be assigned to a channel available for such class, even though interference will be received within its normally protected contour; Provided: (1) no objectionable interference will be caused by the proposed station to existing stations or that if interference will be caused, the need for the proposed service outweighs the need for the service which will be lost by reason of such interference; and (2) primary service will be provided to the community in which the proposed station is to he located; and (3) the interference received does not affect more than 10 percent of the population in the proposed station’s normally protected primary service area; however, in the event that the nighttime interference received by a proposed Class 11 or 111 station would exceed this amount, then an assignment may be made if the proposed station would provide either a standard- broadcast nighttime facility to a community not having such a facility or if 25 percent or more of the nighttime primary service area of the proposed station is without primary nighttime service. * * * ” (Emphasis added.)
. 5 U.S.C. § 1009(e) ; Universal Camera Corp. v. Labor Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
. The circumference of the protected area is a contour line which is fixed by measurement of the strength of the radio ground waves from the particular station.
. Report and Order of August 4, 1954, In the Matter of Amendment of Section 1 of the Standards of Good Engineering Practice Concerning Standard Broadcast Stations, 10 Pike & Fischer R.R. 1595, 1600 (1954). Compare Beaumont Broadcast. Corp. v. Federal Commun. Com’n, 91 U.S.App.D.C. 111, 115-116, 202 F.2d 306, 310 (1952).
. The Dodge City Broadcasting Co.. Inc., 19 Pike & Fischer R.R. 615 (1960) ; Huntington-Montauk Broadcasting Co., Inc., 16 id. 173, 175 (1958), rehearing denied, 16 id. 192b (1960) ; Southern Indiana Broadcasters, Inc., 15 id. 349 (1958) ; Reilly and Spates, 14 id. 985 (1958) ; Radio Herkimer, 13 id. 1206d (1956), 111 (1955).
. The Commission summarized its findings as follows:
“Under its proposed daytime operation, Sayger’s normally-protected 0.5 mv/m contour would encompass an area of 2,-480 square miles with a population of 211,378 persons. Due to interference from existing stations, 17.5% of the population within the foregoing contour would not receive service from the proposed station. No part of the rural area within the whole of Sayger’s normally-protected contour — including the proposed interference areas — receives daytime primary service from fewer than 11 other stations. Tiffin, the city to be served, receives such service from no fewer than 5 other stations, one of which is located in Tiffin and licensed to Malrite. Other cities proposed to be served by Sayger are presently served by no fewer than 3 other stations. At night, Sayger would be limited to its 13.5 mv/m contour containing 24,001 persons in an area of 117 square miles, the interference within its normally-protected (4.0 mv/m) contour causing a 67.3% population loss. The rural area within Sayger’s proposed nighttime service area receives primary service from no fewer than 3 other stations. Tiffin, the only urban area to be served at night, presently receives 2.0 mv/m service from two stations neither of which provides a signal of'10 mv/m to Tiffin’s business and factory areas.”
. The explanation for the increased interference at night is detailed in Daytime Skywave Transmissions, 18 Pike & Fischer R.R. 1845, 1847 (1959) :
“ * * * A second fundamental principle is that involved particularly in the present proceeding — the difference between nighttime and daytime propagation conditions with respect to the standard broadcast frequencies. This is a phenomenon familiar to all radio listeners, resulting from reflection of skywave signals at night from the ionized layer in the upper atmosphere known as the ionosphere. All AM stations radiate both skywave and groundwave signals, at all hours; but during the middle daytime hours these skywave radiations are not reflected in any substantial quantity, and during this portion of the day both skywave service and skywave interference are, in general, negligible. But during nighttime hours the skywave radiations are reflected from the ionosphere, thereby creating the possibility of one station’s rendering service, via skywave, at a much greater distance than it can through its groundwave signal, and at the same time vastly complicating the interference problem because of the still greater distance over which these skywave signals may cause interference to the signals of stations on the same and closely adjacent frequencies. Because of the difference between daytime and nighttime propagation conditions, it has been necessary to evolve different allocation structures for daytime and nighttime broadcasting in the AM band, with many more stations operating during the day than at night.”
. See 47 C.F.R. § 3.28(d), quoted supra Note 1.
. In its decision the Commission discusses its two rulings closest in point:
“ * * * But, even if such nighttime features can appropriately be looked to in determining whether a daytime violation should be permitted, the Commission would be reluctant to base a daytime waiver solely or principally on nighttime considerations. Thus, the daytime proposal itself must also possess outstanding features of the type relied upon by the Commission in extending waiver of the Rule. This consideration serves to distinguish the Southern Indiana case,4 a case principally relied upon by Sayger. There, the daytime station proposed was to be the first in the community as well as the first in the county, and it was also to provide a second primary service daytime to 12,378 persons. Here, Tiffin already has a daytime station, and no portion of Sayger’s proposed service area presently receives daytime primary service from fewer than 3 other stations. As in the Dodge City case (footnote 3, supra) the daytime showing is deficient, failing even to approach that before us in Southern Indiana. Accordingly, the waiver request must be denied.
“ Cf. Dodge City Broadcasting Company, Inc., 29 FCC 900, 19 RR 615 (1960), where the daytime interference was to be 17.7%, and the applicant was to provide a first nighttime service to Liberal, Kansas. Because there was already a daytime station located in Liberal, and because the applicant could show gray-area coverage involving only 747 persons, the waiver request was denied.
“4 Southern Indiana Broadcasters, Inc., 24 CC 521,15 RR 349 (1958).”
. Ashbacker Radio Co. v. F. C. C., 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945).
. See, e. g., Ashbacker Radio Co. v. F. C. C., supra Note 10; Mansfield Journal Co. v. Federal Communications Com’n, 84 U.S.App.D.C. 341, 173 F.2d 646 (1949) ; Pittsburgh Radio Supply House v. Federal C. Commission, 69 App.D.C. 22, 98 F.2d 303 (1938). Cf. United Air Lines v. Civil Aeronautics Board, 97 U.S.App.D.C. 42, 45, 228 F.2d 13, 16 (1955) ; Northwest Airlines v. Civil Aeronautics Board, 90 U.S.App.D.C. 158, 194 F.2d 339 (1952) ; Seaboard & Western Airlines v. Civil Aeronautics Bd., 86 U.S. App.D.C. 9, 181 F.2d 777 (1949).
. Tomah-Mauston Broadcasting Co. v. F. C. C., D.C.Cir., 306 F.2d 811 (1962) ; Seatrain Lines v. Pennsylvania R. Co., 3 Cir., 207 F.2d 255, 259 (1953).
. 47 U.S.C. § 307(a).
. “The Commission was under no obligation to recite every item of evidence, or of fact, which had some bearing on the questions before it.” Mackay Radio & Tel. Co. v. Federal Communications Com’n, 68 App.D.C. 336, 340, 97 F.2d 641, 645 (1938). See also B. & O. R. Co. v. United States, 298 U.S. 349, 359, 56 S.Ct. 797, 80 L.Ed. 1209 (1936).
. Appellant’s exceptions which the Commission granted in substance read:
“1. To the failure to find that Tiffin has substantial size and importance, and has experienced growth in the various economic, industrial and agricultural fields as evidenced by the data contained iu Sayger Exhibit 1.
“2. To the failure to find that Tiffin is the center of a large area, and is the location of numerous Federal, state, county and civic governmental bodies, churches, schools, colleges, utilities, industries, civic groups, and other organizations.”
. Cf. The Price Broadcasters, Inc. v. F. C. C., 111 U.S.App.D.C. 179, 295 F.2d 166 (1961) ; Radio Cincinnati v. Federal Communications Com’n, 85 U.S.App.D.C. 292, 295, 177 F.2d 92, 95 (1949).
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:
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songer_usc2sect
|
2
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
BROADWAY DELIVERY CORP., et al., Plaintiffs-Appellants, v. UNITED PARCEL SERVICE OF AMERICA, INC., et al., Defendants-Appellees.
No. 534, Docket 80-7727.
United States Court of Appeals, Second Circuit.
Argued March 16, 1981.
Decided June 3, 1981.
Joseph M. Alioto, San Francisco, Cal. (Lawrence G. Papale, Alioto & Alioto, San Francisco, Cal., and Elliot L. Schaeffer, Schaeffer, Schaeffer & Sands, New York City, on the brief), for appellants.
Irving R. Segal, Philadelphia, Pa. (Dennis R. Suplee, Arlene Fickler, Diana S. Donaldson, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Proskauer, Rose, Goetz & Mendelsohn, New York City, on the brief), for appellees.
Before LUMBARD and NEWMAN, Circuit Judges, and TENNEY, District Judge.
The Honorable Charles H. Tenney of the United States District Court for the Southern District of New York, sitting by designation.
NEWMAN, Circuit Judge:
This is an appeal from a judgment of the District Court for the Southern District of New York (Kevin T. Duffy, Judge) dismissing, after a jury trial, a complaint for treble damages under § 4 of the Clayton Act, 15 U.S.C. § 15 (1976). The suit was brought by various firms that transport packages in the New York metropolitan area against United Parcel Service of America, Inc. (UPSA) and its wholly owned operating subsidiary in the Northeast, United Parcel Service, Inc. (New York) (UPSNY). The plaintiffs charged that from 1960 to 1975 the defendants conspired to monopolize, and monopolized or attempted to monopolize the pickup and delivery of small packages sent by wholesalers in the New York garment district, in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1976). The § 1 claim was disposed of by summary judgment on the basis of the defendants’ unopposed showing that during the relevant period they conducted their affairs and held themselves out as a single firm, incapable of conspiring with itself in violation of § 1. The § 2 claims were tried to a jury, which returned a verdict for the defendants. On appeal, the plaintiffs-appellants challenge primarily the District Court’s rejection of their § 1 claim, and the Court’s jury instruction that they could not prevail on their § 2 monopolization claim unless they proved that during the relevant period the defendants controlled at least 50% of the relevant market. We conclude that the plaintiffs abandoned their § 1 claim and that the challenged jury instruction was erroneous but harmless error in light of the plaintiffs’ failure to present a prima facie case of a § 2 monopolization violation. Our disposition of these issues moots the other claims of error, and we therefore affirm.
FACTUAL BACKGROUND
The plaintiffs transport goods by motor vehicle in and around what is known in the trade as the New York commercial zone, an area encompassing New York City and parts of northern New Jersey, which is exempt from regulation by the Interstate Commerce Commission and the New York State Department of Transportation. Most of the plaintiffs limit their activities to carrying merchandise from garment manufacturers in the commercial zone to retail stores in the commercial zone or to freight consolidators and post offices for re-delivery to retail stores throughout the United States. The plaintiffs who restrict their activities to the unregulated commercial zone are not required to have ICC operating rights, and many have none. Like anyone with a truck who wishes to engage in the transportation business in this area, these plaintiffs are free to pick up and deliver, as often as they wish, as many packages of any size and weight as they are physically able to carry, at any rate that the market will bear.
The defendant UPSA is a Delaware corporation owning all the stock of defendant UPSNY, a New York corporation, and non-defendant United Parcel Service, Inc. (Ohio), an Ohio corporation (UPSO). The UPS subsidiaries transport packages in interstate commerce. UPSNY operates in thirteen Northeastern states, including the New York commercial zone; UPSO operates throughout the rest of the forty-eight contiguous states. Although separately incorporated, the subsidiaries operate cooperatively under a management agreement with UPSA to provide a unified transportation service for shippers throughout the country. During the relevant period, the management agreement provided that UPSA would supply the subsidiaries with a full range of management services in exchange for 4.5% of their gross receipts plus 50% of their net profits. The agreement further provided that UPSA would indemnify each subsidiary against operating losses it sustained in any year in which it followed UPSA’s advice and recommendations.
Unlike the plaintiffs who restrict their activities to the commercial zone, the UPS subsidiaries operate under the jurisdiction of the ICC. During the relevant period, their ICC operating certificates prohibited them from carrying a package weighing more than 50 pounds or measuring more than 108 inches in length and girth combined. The certificates also prohibited them from transporting from a single shipper to a single consignee in any one day packages having an aggregate weight of more than 100 pounds. The rates charged by the UPS subsidiaries, contained in tariffs filed with the ICC, are modeled after and closely parallel the rates charged by the United States Postal Service, the UPS organization’s principal competitor. The UPS rates depend on the weight of the package and the distance to be traveled and are uniform for shippers throughout the country.
The record on appeal sheds little additional light on the nature of the market in which the parties conduct their operations. The plaintiffs contend that they established a relevant service market consisting of the pickup and delivery of wholesale packages weighing less than 50 pounds, and a relevant geographic market consisting of one of the basic administrative and operating units of the UPS organization, namely, the “Metro New York District,” an area consisting in large part of the New York commercial zone. The defendants contend that the plaintiffs’ definition of the relevant service market is too narrow in that it excludes some of the plaintiffs themselves, for example, a freight consolidator, who neither picks up nor delivers any packages. The defendants also challenge the plaintiffs’ definition of the relevant geographic market, noting that the UPS companies operated during the period in question on a nationwide basis, that the Postal Service also operated nationwide, that much of the merchandise carried locally by the plaintiffs was eventually delivered to points throughout the United States, and that some of the plaintiffs carried merchandise to and from points outside the Metro New York District. On our view of the case, it is unnecessary to resolve the question whether the evidence was sufficient to establish the service and geographic markets urged by the plaintiffs. For purposes of this appeal, we will assume that the relevant service and geographic markets are the ones claimed by the plaintiffs.
How the parties fared in the relevant market is an issue of some uncertainty. The plaintiffs alleged in their complaint that UPSNY’s share of the relevant market steadily increased throughout the relevant period due to, among other exclusionary practices, below-cost pricing subsidized by UPSA, and that UPSNY eventually acquired more than a 50% share of the relevant market. The plaintiffs’ evidence established that UPSNY’s traffic tripled during the relevant period and that its revenues increased sevenfold. But the plaintiffs presented no evidence of UPSNY’s market share at any time during the period in question. To support their claim that the defendants had engaged in predatory pricing, the plaintiffs relied on summaries of UPSNY’s operations prepared by the defendants for internal purposes, and on the record of the payments the defendants made to each other under their management agreement. The plaintiffs interpreted the operating summaries as proof that UPSNY had consistently operated at a loss. However, the defendants’ expert in cost accounting testified without rebuttal that the summaries were not only ill-suited for the purpose of showing the profitability of UPSNY’s operations, but that, when the figures were properly adjusted, they showed that UPSNY made substantial profits in most years. Losses occurred only in 1963, soon after UPSNY began operating in the relevant market, and in those years in which UPSNY was beset by major strikes. The record of the defendants’ payments to each other showed that during the relevant period UPSA collected from UPSNY a total of over $178 million and indemnified it against losses totaling $37.6 million.
DISCUSSION
A. The § 1 Claim
■ The plaintiffs’ § 1 claim was. directed primarily at the indemnification provision of the defendants’ management agreement. The plaintiffs contended that this provision had the purpose and effect of unreasonably restraining competition in the relevant market by enabling UPSA to use the profits earned by UPSO to subsidize predatory pricing by UPSNY. Following three years of pretrial proceedings, the defendants moved for partial summary judgment on the § 1 claim, contending on the basis of affidavits and deposition testimony that the agreement among the UPS entities was outside the purview of § 1 because they had operated at all relevant times as a single enterprise. The plaintiffs opposed the motion on the ground that the defendants had operated independently and requested an opportunity to engage in further discovery to elicit proof to support their claim. The District Court ruled that the defendants’ capacity to conspire with each other in violation of § 1 was an issue of fact. Though the defendants’ factual showing was unre-butted, the Court continued the motion for sixty days to allow the plaintiffs further opportunity to oppose the motion. The Court warned the plaintiffs that unless they submitted appropriate proof within the sixty-day period, their § 1 claim would be dismissed. The plaintiffs never submitted the required proof, despite several additional extensions of time totaling more than six months, and the defendants’ motion was eventually granted.
At a pretrial conference one year later, the plaintiffs’ new counsel inquired whether the Court would be willing to submit the § 1 claim to the jury in the event the plaintiffs presented evidence demonstrating that the defendants had entered into an agreement prohibited by § 1. Judge Duffy replied that, despite the order dismissing the § 1 claim (which remained subject to revision, Fed.R.Giv.P. 54(b)), he had an open mind on the matter and was willing to permit the plaintiffs to attempt to prove the elements of their § 1 claim. Nevertheless, the plaintiffs failed to press the § 1 claim before the jury, requested no jury instruction on the claim, and voiced no objection when no § 1 instruction was given.
Whether the applicability of the intracorporate conspiracy doctrine is an issue of law or fact, a question that continues to divide the other circuits, we agree with the defendants that the plaintiffs abandoned their § 1 claim when they failed to pursue it at trial. The District Court’s grant of the plaintiffs’ request to litigate the claim before the jury afforded them a full opportunity to secure revision of the order granting the partial summary judgment prior to the entry of any final judgment. The plaintiffs had more than the procedural possibility of revision contemplated by Rule 54(b); they had the District Court’s explicit invitation to proceed. Their appeal from the dismissal of their claim is therefore no different from prior appeals challenging the rejection of claims and defenses that were pleaded but not properly pursued in the trial court; in such cases an appellate court will not relieve a party of the effect of its procedural default, except in the most extraordinary circumstances to prevent a miscarriage of justice. See Stanspec Corp. v. Jelco Inc., 464 F.2d 1184, 1187 (10th Cir. 1972); King v. Stevenson, 445 F.2d 565, 571 (7th Cir. 1971); Evans v. S.J. Groves & Sons Co., 315 F.2d 335, 341 (2d Cir. 1963). No such circumstances exist here.
B. The § 2 Monopolization Claim
In instructing the jury on the plaintiffs’ § 2 monopolization claim, the District Court explained, in traditional language, that the defendants must be shown to have willfully acquired or maintained monopoly power— the power to control prices or exclude competition — in the relevant market. United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966); United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956). The jury was then told to determine the defendants’ share of the relevant market in deciding whether the defendants possessed monopoly power. If the jury agreed with the plaintiffs’ market definition, the defendants’ market share was to be determined by calculating the percentage of all the small wholesale packages transported in the Metro New York District that were transported by the defendants. The plaintiffs do not challenge the instruction defining market share in terms of the percentage of packages carried, instead of the more traditional measure of the percentage of revenues received. Instead, their attack focuses on the following instruction concerning the significance of a market share below 50%: “If you find that the defendants possessed less than 50% of the relevant market, you don’t have to go any further on a monopolization claim. Possession of less than 50% of the market fails to establish monopoly power.” It is not entirely clear from the instructions how the jury was to use market share if it found that the share exceeded 50%. But there is no doubt that the jury was unequivocally told to reject the monopolization claim if the defendants’ share was found to be less than 50%.
The significance of particular market shares has evoked varied comment in antitrust law. The cases have considered many different percentages, and the Courts’ observations cannot readily be compared because they were made in contexts that ranged from a fact-finder’s assessment of the evidence, e. g., United States v. United Shoe Machinery Corp., 110 F.Supp. 295 (D.Mass.1953), aff’d, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910 (1954), to a legal determination of the sufficiency of a claim, e. g., Brager & Co., Inc. v. Leumi Securities Corp., 429 F.Supp. 1341 (S.D.N.Y.1977). Several decisions cast doubt on whether monopoly power can be possessed by a company enjoying less than a 50% market share. In the early case of United States v. United States Steel Corp., 251 U.S. 417, 40 S.Ct. 293, 64 L.Ed. 343 (1920), the Supreme Court stated that it was “certain” that the defendant had not achieved a monopoly, reasoning that although “the power [it] attained was much greater than that possessed by any one competitor — it was not greater than that possessed by all of them.” Id. at 444, 40 S.Ct. at 297. It has frequently been observed, moreover, that the leading cases upholding monopolization claims involved defendants who controlled well over half the relevant market, with market shares ranging from 70% to 100%. See, e. g., Hiland Dairy Inc. v. Kroger Co., 402 F.2d 968, 974 n.6 (8th Cir. 1968) (collecting cases). And an occasional statement can be found labeling a 50% market share a “prerequisite for a finding of monopoly.” Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203, 207 n.2 (5th Cir. 1969). In most instances, however, the courts seem to be assessing only the significance of the share possessed by a particular defendant in a particular market, rather than endeavoring to extrapolate a general rule. In United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945), for example, Judge Learned Hand considered Alcoa’s share under three possible market definitions and thought it “doubtful” whether a share of 60-64%, yielded by one of the definitions, would constitute a monopoly. Id. at 424. It seems unlikely that Judge Hand was doubting that any defendant with a 60-64% share of any market, regardless of its structure, could ever be found to possess monopoly power. Even if his doubts ranged beyond the case he was considering, it is significant that he expressed a doubt, not a rule of preclusion.
In Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 841 (2d Cir. 1980), the case relied on by the District Court as authority for the challenged instruction, we held that a monopolization claim was properly dismissed on a motion for summary judgment despite evidence that at the beginning of the relevant period the defendant had a market share of 48.3%. But we did not affirm the defendant’s judgment simply because 48.3% was less than 50%. Instead we assessed the significance of the defendant’s share, specifically noting that the share had steadily declined to 33%. See Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 273 n.11 (2d Cir. 1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980) (noting evidential significance of decline in market share). In United States v. United Shoe Machinery Co., supra, Judge Wyzanski, as the finder of fact, found, on the basis of all the evidence, that the defendant controlled markets in which its share exceeded 50%, but did not control other markets in which its share was less than 50%. Id. at 346. Similarly, in Holleb & Co. v. Produce Terminal Cold Storage Co., 532 F.2d 29, 33 (7th Cir. 1976), the Court, in rejecting the sufficiency of a § 2 claim, noted that the defendant’s market share did not exceed 60%, but also observed that there was no evidence of the shares of other principal competitors and, in general, insufficient evidence to support a conclusion that the defendant had monopoly power.
The trend of guidance from the Supreme Court and the practice of most courts endeavoring to follow that guidance has been to give only weight and not conclusiveness to market share evidence. In United States v. Columbia Steel Co., 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533 (1948), the Supreme Court recognized that exclusive focus on market share percentages can produce a distorted picture of market power because “the relative effect of percentage command of a market varies with the setting in which that factor is placed.” Id. at 528, 68 S.Ct. at 1124. The Court said that a true picture emerges only from consideration of additional market characteristics, among them, the strength of the competition, the probable development of the industry, and consumer demand. Id. at 527, 68 S.Ct. at 1124. In more recent decisions in the merger context, the Court has reaffirmed its unwillingness to base market power determinations simply on market share data, preferring to treat market share as strong, perhaps presumptive, evidence of the presence or absence of market power, subject to bolstering or rebuttal by other evidence. See, e. g., United States v. Citizens & Southern National Bank, 422 U.S. 86, 120, 95 S.Ct. 2099, 2118, 45 L.Ed.2d 41 (1975); United States v. Marine Bancorporation, 418 U.S. 602, 631, 94 S.Ct. 2856, 2874, 41 L.Ed.2d 978 (1974); United States v. General Dynamics Corp., 415 U.S. 486, 497-98, 94 S.Ct. 1186, 1193-94, 39 L.Ed.2d 530 (1974). This approach was followed recently by the Ninth Circuit when it reversed a ruling that an allegation of a market share of 65% was an insufficient, pleading of monopoly power, Hunt-Wesson Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 924-25 (9th Cir. 1980), cert. denied,-U.S.-, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981), and by several trial courts which recognized, in denying motions to dismiss claims or grant summary judgment, that a particular market share is not inevitably necessary for a firm to be able to control prices or exclude competition. See Brager & Co., Inc. v. Leumi Securities Corp., supra, 429 F.Supp. at 1347 (claim alleging 60% share); American Standard, Inc. v. Bendix Corp., 487 F.Supp. 265, 269 (W.D.Mo.1980) (no percentage allegation); Fox Chemical Co. v. Amsoil, Inc., 445 F.Supp. 1355, 1360 (D.Minn.1978) (same). See generally, 4 P. Areeda & D. Turner, Antitrust Law ¶¶ 908-15 (1978); Landes & Posner, Market Power in Antitrust Cases, 94 Harv.L.Rev. 937 (1981).
We do not doubt the significance of market share evidence as an indicator of either the presence or absence of monopoly power. As the cases and commentators have cautioned, however, the true significance of market share data can be determined only after careful analysis of the particular market. Unfortunately, that type of analysis is more congenial to ■ the economist’s blackboard than to the courtroom, especially when an antitrust case is tried to a jury. Formulas can express the pertinent relationships between market power, market share, and demand and supply elasticities, e. g., Landes & Posner, supra, at 945 (equation 3), but the data required for sophisticated analysis of a particular market are not always available, and their comprehension by jurors is uncertain at best. Endeavoring to apply the legal standards of the antitrust laws in the light of modern economics requires trial judges to assess carefully whether the market power evidence creates a fair jury issue of monopoly power and, if so, to afford the jury helpful guidance in resolving the issue.
In ruling on a motion for summary judgment or directed verdict, a trial judge should recognize that determining the existence of monopoly power often does not require resolution of the sharp factual disputes associated with such issues as agreement, intent, preparedness, or damages, issues frequently involving credibility disputes that ordinarily require jury resolution. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). Undisputed facts may enable the trial judge to rule on a claim of monopoly power as a matter of law, employing economic analysis to the extent the data permit. In making such rulings, the trial judge may properly attach significance to market share evidence. Depending on what the undisputed evidence shows concerning a defendant’s market share, the structure of a market, and the activities of the defendant and others within the market, a particular record may permit no reasonable inference other than that the defendant lacks monopoly power. Such a conclusion may be reached if the defendant’s share is less than 50%, or even somewhat above that figure, and the record contains no significant evidence concerning the market structure to show that the defendant’s share of that market gives it monopoly power. In the absence of such evidence and any other evidence from which the power to control prices or exclude competition can reasonably be inferred, a monopolization claim may be withdrawn from a jury.
If, however, the record contains evidence framing a fair jury question as to whether a defendant has monopoly power, the court should assist the jurors in assessing the significance of market share and of other factors bearing on monopoly power. It usually will be helpful to advise a jury that the higher a market share, the stronger is the inference of monopoly power.. And a jury can usefully be given some explanation concerning the relationship between market share and market structure to make it clear that, although a particular share might enable a company to have monopoly power in one market, the same share might not enable another company to have monopoly power in a different market with different market characteristics.
The extent to which market characteristics should be explained to the jury in a particular case will vary with the nature of the underlying facts and the expert testimony. Sometimes, but not inevitably, it will be useful to suggest that a market share below 50% is rarely evidence of monopoly power, a share between 50% and 70% can occasionally show monopoly power, and a share above 70% is usually strong evidence of monopoly power. But when the evidence presents a fair jury issue of monopoly power, the jury should not be told that it must find monopoly power lacking below a specified share or existing above a specified share. Of course, cases may arise where the parties’ dispute concerning market definition creates a jury issue on monopoly power only if one side’s market definition, usually the plaintiff’s, is established. In such circumstances a jury can be instructed to find for the defendant if the plaintiff fails to prove its definition of the relevant market. Alternatively, a jury could be instructed to answer a special interrogatory concerning market definition, which would permit the trial judge to direct a verdict for the defendant if the plaintiff failed to prevail on its market definition. On the other hand, in some cases, there may be a genuine issue as to monopoly power in the market as defined by either party, in which event the market share under either definition would not be conclusive. However the instruction is phrased, it should not deflect the jury’s attention from indicia of monopoly power other than market share. See United States v. E.I. du Pont de Nemours & Co., supra; Juneau Square Corp. v. First National Bank of Wisconsin, 624 F.2d 798, 813 (7th Cir.), cert. denied, 449 U.S. 1013, 101 S.Ct. 571, 66 L.Ed.2d 472 (1980); Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1219 (9th Cir. 1977); Jack Winter, Inc. v. Koratron Corp., Inc., 375 F.Supp. 1, 68-69 (N.D.Cal.1974). See generally 2 P. Areeda & D. Turner, supra, ¶¶ 507-16.
In light of these considerations, the District Court’s instruction, precluding a finding of monopoly power if the defendants’ market share was less than 50%, was erroneous for two reasons. First, with the record devoid of any evidence of UPSNY’s percentage of the relevant market, whether as defined by the plaintiffs or the defendants, the jury could not possibly apply an instruction to attach conclusive significance to a share below a specified percentage. More fundamentally, even if from all the evidence the jury might somehow have inferred that UPSNY carried less than half the packages in the New York commercial zone, that fact would not automatically preclude a finding of monopoly power by a jury entitled to assess monopoly power on the record as a whole. In this case, however, the challenged instruction does not require reversal because the plaintiffs’ evidence was insufficient to permit a reasonable jury to find that UPSNY possessed monopoly power.
When the existence of significant market power is an essential element of a claim for treble damages, the plaintiff’s market power evidence, whether consisting of the defendant’s market share or of specific conduct indicating the defendant’s power to control prices or exclude competition, must be substantial. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696-97 & n.6, 82 S.Ct. 1404, 1409 & n.6, 8 L.Ed.2d 777 (1962); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir. 1980); California Computer Products, Inc. v. International Business Machines Corp., 613 F.2d 727, 733 (9th Cir. 1979). In FLM Collision Parts, Inc. v. Ford Motor Co., 543 F.2d 1019 (2d Cir. 1976), cert. denied, 429 U.S. 1097, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977), we noted that to prove a defendant’s possession of monopoly power ordinarily requires proof of the “approximate share” of the market controlled by the defendant. Id. at 1030. Yet, in this case, the plaintiffs presented no market share data, conceding to the jury that they did not have “any percentages.” We do not suggest that evidence of market share is invariably a requirement of a monopolization claim, but when such a traditional form of proof is lacking, the plaintiff must produce unambiguous evidence that the defendant has the power to control prices or exclude competition. Isolated instances of anti-competitive conduct will rarely suffice to show that a defendant’s market power is substantial enough to be monopoly power. Such acts may show what power a defendant is seeking, but not necessarily what power it has. See P. Areeda & D. Turner, supra, ¶ 513.
Lacking market share data, the plaintiffs relied primarily on evidence purporting to show that UPSNY had consistently operated below cost while also realizing steady gains in its volume of traffic. No case supports the view that proof of below-cost pricing, without proof of market structure, is sufficient to establish the market power component of a monopolization claim. It is conceivable that predatory pricing persisting over an extended period could support an inference of monopoly power on the theory that sustaining substantial losses will at some point destroy either the defendant or its competition. But because the social costs of failing to distinguish between predatory pricing and competitive pricing are frequently high, see Joskow & Klevorick, A Framework for Analyzing Predatory Pricing Policy, 89 Yale L.J. 213, 223-25 (1979), sounder analysis permits examination of a defendant’s pricing behavior only after a plaintiff has produced some evidence of a defendant’s monopoly power in the relevant market, id. at 242-62.
In this case, whatever inference might theoretically be drawn from persistent below-cost pricing, the evidence, considered as a whole, was clearly insufficient to establish a jury issue as to whether the defendants possessed monopoly power. Undisputed evidence showed that the defendants did not have the power to control prices. The defendants’ rates were subject to ICC approval and could not realistically be raised substantially without the defendants losing business to their principal competitor, the Postal Service. Undisputed evidence further showed that the defendants lacked the power to exclude competition. The Postal Service could not be excluded by the defendants, and entry into the market was open to anyone willing to make the modest investment required to engage in a local delivery service.
Moreover, the plaintiffs’ evidence of predatory pricing was in itself seriously deficient. Whether or not one agrees that proof of pricing below marginal or average variable cost is essential to a predatory pricing claim, the plaintiffs could not demonstrate price predation by the defendants without proof permitting a careful assessment of the relationship between the defendants’ prices and costs. See generally 3 P. Areeda & D. Turner, supra, IH 710-11. The plaintiffs’ proof did not permit a reasonable fact-finder to make this assessment. The summaries of UPSNY’s operations lump all its traffic figures in one category, all its revenues in another, and all its profits in a third. It may be that an expert in cost accounting could have discerned in these gross figures a basis for the required analysis, but the plaintiffs presented no such testimony. Indeed, the plaintiffs did not even attempt to counter the testimony of the defendants’ expert that the summaries, properly adjusted, show that UPSNY earned substantial profits in all non-strike years. The record of the defendants’ payments to each other under the management agreement undercut the plaintiffs’ predatory pricing claim, showing that UPSNY earned millions of dollars of gross revenues and net profits during the relevant period.
At most, the plaintiffs’ evidence established that UPSNY’s prices were lower than the prices charged by some of the plaintiffs. It is questionable whether uniform nationwide rates that are subject to approval by one government agency and to competitive pressure by another can ever be considered predatory merely because the rate schedule yields prices in one area that are lower than the prices charged by local competitors. But the plaintiffs could not prevail on their claim in any event unless they showed that the defendants’ prices were unrelated to competition on the merits. Even if, as the plaintiffs contend, the defendants’ uniform rates were made possible by using UPSO’s profits to subsidize UPSNY’s operations, the plaintiffs did not contest the defendants’ showing that their nationwide rate structure was calculated to be competitive with the rate structure of the Postal Service, and that the uniformity of their rates throughout the forty-eight states made their service more attractive to shippers.
Considering all these factors in light of prior cases upholding the dismissal of predatory pricing claims, we have no difficulty concluding that the plaintiffs’ evidence of a monopolization violation was insufficient. See, e. g., Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., supra, 615 F.2d at 430-34; California Computer Products, Inc. v. International Business Machines Corp., supra, 613 F.2d at 739-43; Janich Brothers, Inc. v. American Distilling Co., 570 F.2d 848, 855-59 (9th Cir. 1977), cert. denied, 439 U.S. 829, 99 S.Ct. 103, 58 L.Ed.2d 122 (1978); Hanson v. Shell Oil Co., 541 F.2d 1352, 1357-59 (9th Cir. 1976), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977). The plaintiffs do not challenge the dismissal of their attempted monopolization claim, to which the erroneous 50% market share instruction did not apply. That claim was properly rejected by the jury, and we therefore need not consider whether it was appropriate for submission to the jury.
Judgment affirmed.
. The plaintiffs also challenge the District Court’s refusal to allow them to recount statements made to them by certain garment manufacturers concerning the reasons their customers had given them for preferring to have their orders shipped by the defendants. The plaintiffs offered this hearsay testimony to prove that the manufacturers’ customers preferred the defendants because of their lower rates. Finally, the plaintiffs challenge the Court’s admission in connection with the issue of damages of a defense exhibit showing that from 1970 to 1975 the volume of small packages carried by at least one of the plaintiffs actually increased.
. Compare Columbia Metal Culvert Co., Inc. v. Kaiser Aluminum & Chemical Corp., 579 F.2d 20, 33-34 & n.49 (3d Cir.), cert. denied, 439 U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190 (1978) (issue of law), and H & B Equipment Co., Inc. v. International Harvester Co., 577 F.2d 239, 244-45 (5th Cir. 1978) (same), with Photovest Corp. v. Fotomat Corp., 606 F.2d 704, 726-27 (7th Cir. 1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1278, 63 L.Ed.2d 601 (1980) (issue of fact), Ogilvie v. Fotomat Corp., 641 F.2d 581, 1980-81 Trade Cases (CCH) ¶ 63,817 (8th Cir. 1981) (same), and Las Vegas Sun, Inc. v. Summa Corp., 610 F.2d 614, 617-18 (9th Cir. 1979), cert. denied, 447 U.S. 906, 100 S.Ct. 2988, 64 L.Ed.2d 854 (1980) (same).
. In this case, though there was some dispute as to market definition, the jury was given nc choice between conflicting claims of market share because there were no data from either side concerning the defendants’ market share under either side’s view of the relevant market.
. Compare Hanson v. Shell Oil Co., 541 F.2d 1352, 1359 (9th Cir. 1976), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977) (failure to show that defendant’s prices were below marginal or average variable cost constituted failure as a matter of law to present a prima facie case of predatory pricing), and International Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714, 724 (5th Cir. 1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1411, 47 L.Ed.2d 349 (1976) (same), with Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., supra, 615 F.2d at 432-33 (pricing below marginal or average variable cost relevant but not essential), and Pacific Engineering & Production Co. v. Kerr-McG
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15? Answer with a number.
Answer:
|
songer_origin
|
C
|
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.
W. C. GRESHAM, Appellant, v. Dr. George J. BETO, Director, Department of Corrections, Appellee.
No. 23990.
United States Court of Appeals Fifth Circuit.
March 23, 1967.
W. C. Gresham, pro se.
Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., Waggoner Carr, Atty. Gen. of Texas, Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Howard M. Fender, Asst. Atty. Gen., Austin, Tex., for appellee.
Before BROWN, MOORE, and BELL, Circuit Judges.
Of the Second Circuit, sitting by designation.
PER CURIAM.
Appellant, a Texas prisoner, received a plenary hearing on his petition for federal habeas corpus. He is serving a life sentence for the murder of a fellow prison inmate. He was convicted in 1933 and now claims that he was denied a fair trial at the time in three respects. First, all of his witnesses were intimidated to the extent that they refused to testify; second, he was deprived of certain defenses by being tried with three co-defendants; and third, he was denied the effective assistance of counsel because there was a conflict of interest between his own representation and that of his co-defendants. The District Court ruled against appellant in every respect and that ruling is amply supported by the facts and the law.
Affirmed.
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_usc2
|
8
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 8. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
Zdzislaw JANUSIAK, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 91-3027.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6), Aug. 12, 1991.
Decided Aug. 22, 1991.
Mark Broydes, New York City, for petitioner.
Lori L. Scialabba, David J. Kline, Carl H. McIntyre, Jr., Office of Immigration Litigation, Civ. Div. Dept, of Justice, Washington, D.C., for respondent.
Before COWEN and NYGAARD, Circuit Judges, and POLLAK, District Judge.
Honorable Louis H. Poliak, United States District Court Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
COWEN, Circuit Judge.
This appeal arises from the denial of Zdzislaw Janusiak’s application for political asylum and withholding of deportation. Affirming the decision of the administrative law judge below, the Board of Immigration Appeals held that Janusiak did not have a well-founded fear of persecution in Poland for his political activities while a member of Solidarity, or for his criminal conduct in obtaining a passport. We will affirm.
I.
A native and citizen of Poland, Janusiak had tried several times to obtain a passport so he could leave that country. In 1985 he finally procured a passport by illegally bribing a worker in the Passport Bureau. While in Poland, Janusiak had been an active member of Solidarity, an outlawed organization at the time, but whether the communist government knew of his activities was not established. He entered the United States in December, 1985 on a visitor’s visa. The United States Immigration and Naturalization Service (“INS”) promptly gave Janusiak permission to stay in the country until July 12, 1986.
On May 25, 1986, Janusiak applied for political asylum and withholding of deportation at the Newark, New Jersey district office of the INS. This application was denied, and deportation proceedings began. Thereafter, Janusiak renewed his application. See 8 U.S.C. § 1158 (asylum application); 8 U.S.C. § 1253(h) (application for withholding of deportation). At a subsequent hearing on his application, Janusiak claimed he would face persecution by the Polish government for two reasons were he forced to return: his activities on behalf of Solidarity and his illegal procurement of a passport. Based on the evidence in the record before it, the immigration judge denied Janusiak’s application for asylum and withholding of deportation, but did grant his request for voluntary departure.
A timely appeal was taken to the Board of Immigration Appeals (the “Board”) in August, 1988. On December 17, 1990, the Board affirmed the immigration judge’s decision and dismissed Janusiak’s appeal. It reasoned that Janusiak no longer had a well-founded fear of persecution for his Solidarity activities because that organization had become part of the coalition governing Poland. The Board also found that Janusiak failed to demonstrate that he would be treated differently than other Polish citizens who leave with an illegal passport, and that a violation of a fairly administered passport law does not constitute persecution. This appeal followed.
II.
Our jurisdiction over this appeal is predicated on 8 U.S.C. § 1105a(a). We review Board decisions regarding asylum and withholding of deportation for abuse of discretion. McLeod v. I.N.S., 802 F.2d 89, 92 (3rd Cir.1986). “To qualify for a grant of asylum, ... an applicant must demonstrate a ‘well-founded fear of persecution.’ ” Id. A “well-founded fear” exists if, under the circumstances, the applicant reasonably thinks that he would be persecuted upon return to his native land. Balazoski v. I.N.S., 932 F.2d 638, 640 (7th Cir. 1991). An applicant for withholding of deportation will lose unless he shows a “clear probability” of persecution. I.N.S. v. Stevie, 467 U.S. 407, 424, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984). “Clear probability” is considered a higher standard than “well-founded fear.” Id. at 429-30, 104 S.Ct. at 2501; Balazoski v. I.N.S., 932 F.2d at 640. It follows, then, that an applicant who fails to prove “well-founded fear” in his quest for asylum will similarly be unable to prove “clear probability” with respect to withholding of deportation. Balazoski v. I.N.S., 932 F.2d at 640. Therefore, so long as the Board correctly denied Janusiak’s application for asylum, its denial of the application for withholding of deportation will also be proper.
In this appeal, Janusiak asserts that his fear of persecution is well-founded and clearly probable for two reasons. We will address each justification for asylum and withholding of deportation in turn.
A.
If forced to return to Poland, Janusiak claims that he would face persecution for his membership in Solidarity. We hold that Janusiak’s fear of persecution in this regard is not reasonable. To begin, Solidarity is now the ruling party in the Polish government, a fact of which the Board took administrative notice. It is highly unlikely, therefore, that Janusiak would be persecuted for his activities on behalf of that organization. See Kubon v. I.N.S., 913 F.2d 386, 388 (7th Cir.1990) (member of Solidarity could not prove a well-founded fear of persecution because Solidarity is now part of the governing coalition in Poland).
Attempting to blunt the impact of the political change in Poland, Janusiak explains that while Solidarity is ostensibly in charge of the central Polish government, the communists still control the local political units. According to Janusiak, then, the communists retain the power to punish him for his activities. Even accepting Janus-iak’s perception of the political change in Poland, we still do not believe he has demonstrated a well-founded fear of prosecution.
The record offers no indication of actual persecution or the spectre of persecution. While in Poland, Janusiak was never detained, questioned, or otherwise harassed by Polish authorities with respect to his Solidarity activities. Moreover, he was able to work in the private sector. Although Janusiak did have trouble obtaining a passport, those difficulties were directly attributable to his father, and not to his Solidarity membership. When viewed in light of the changing political landscape in Poland, Janusiak’s meager proof does not give rise to a well-founded fear of persecution.
B.
Aside from his activities on behalf of Solidarity, Janusiak contends that he might also be persecuted for bribing a Passport Bureau official. In other words, Janusiak fears prosecution because he committed a crime. This argument fails for two reasons.
First, prosecution for criminal violations of fairly administered laws is ordinarily not one of the statutory grounds upon which a claim for asylum can be based. An alien must show that his fear of persecution is attributable to one of five things enumerated in the Immigration and Nationality Act: race, political beliefs, religion, nationality, or membership in a particular social group. 8 U.S.C. § 1101(a)(42)(A); Zamora-Morel v. I.N.S., 905 F.2d 833, 837 (5th Cir.1990). A prosecution for circumventing a passport law would not implicate any of those grounds unless, perhaps, it was demonstrated that earlier passport requests were denied for non-legitimate political reasons or that Janusiak would be treated differently than other violators of passport laws because of his political leanings. However, Janusiak offered no evidence of this kind. The record establishes that it was his father’s letter to the authorities, not Janusiak’s membership in Solidarity, which primarily motivated the Passport Bureau’s actions. See supra note 2. Moreover, there is nothing to suggest that Janusiak will be prosecuted for his transgressions while other violators unaffiliated with Solidarity will not.
Second, Janusiak did not meet his burden of proving that his fear of prosecution and imprisonment was anything more than speculative. See McLeod v. I.N.S., 802 F.2d at 93 & n. 2; Carvajal-Munoz v. I.N.S., 743 F.2d 562, 574, 577 (7th Cir.1984). See also Rodriguez-Riverra v. I.N.S., 848 F.2d 998, 1002 (9th Cir.1988); Ananeh-Firempong v. I.N.S., 766 F.2d 621, 625 (1st Cir.1985) (all standing for the proposition that to prove a well-founded fear of persecution, asylum applicant must show “specific,” “objective,” “credible” and “direct” facts). No evidence indicates that he would be prosecuted for violating the laws of Poland. Janusiak was only able to show that while the communists were in charge of Poland, security police visited his friends and asked about him. To the best of anybody’s knowledge, a warrant for his arrest has not been issued. Under the circumstances of this case, then, Janusiak has not even shown a reasonable fear that he will be prosecuted upon his return to Poland.
III.
In conclusion, the Board’s decision to deny Janusiak’s application for asylum was not an abuse of discretion, since he did not prove that his fear of persecution was reasonable. The denial of Janusiak’s application for withholding of deportation was likewise proper because Janusiak’s failure to show a well-founded fear of prosecution necessarily implies that he is unable to demonstrate a “clear probability” of prosecution. We will therefore affirm the Board’s order in its entirety.
. The Board often aids courts of appeals "by taking administrative notice of important facts about the country in question.” Balazoski v. I.N.S., 932 F.2d at 642. Accord McLeod v. I.N.S., 802 F.2d at 93 n. 4. This aid is often an important part of our decision-making, since defining persecution is an "elusive and precise task, one that is at the margins perhaps uniquely political in nature." Id. at 641. In Kubon v. I.N.S., 913 F.2d 386, 388 (7th Cir.1990), the court held that the Board properly took notice of the role of Solidarity in the current Polish government while affirming its denial of the appellant's application for asylum.
. Apparently, Janusiak’s father thought that his son would leave the country were he issued a passport, and wrote a letter to the passport authorities explaining his fears.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 8. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Irving KAZANOFF, Individually and as Executor of the Estate of Shelley Kazanoff, Plaintiff-Appellant, v. UNITED STATES of America; Just Management Corporation; Daniel Rodriguez; William Deliu; Preferred 100-10 67th Road Condominium Corporation; 100-10 67th Road Condominium Corporation, Defendants-Appellees.
No. 1437, Docket 91-6021.
United States Court of Appeals, Second Circuit.
Argued May 2, 1991.
Decided Sept. 10, 1991.
Jesse I. Levine, Garden City, N.Y. (Levine, Weinberg, Kaley & Pergament, of counsel), for plaintiff-appellant.
Paul Weinstein, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. E.D.N.Y., Robert L. Begleiter, Robin L. Greenwald, M. Lawrence Noyer, Jr., Asst. U.S. Attys., of counsel), for defendant-appellant U.S.
Stephen A. Weinstein, New York City, for defendants-appellees 100-10 67th Road Condominium Ass’n and Just Management Corp.
Linda Gimble, New York City (Harold M. Foster, of counsel), for defendant-appellee Preferred 100-10 67th Road Condominium Corp.
Before OAKES, Chief Judge, WINTER, Circuit Judge, and CONBOY, District Judge.
The Honorable Kenneth Conboy of the District Court for the Southern District of New York, sitting by designation.
CONBOY, District Judge:
Irving Kazanoff, individually and as executor of the estate of Shelley Kazanoff, his deceased wife, appeals from an order of the District Court for the Eastern District of New York (Sifton, Judge), dated December 13, 1990, 753 F.Supp. 1056, granting summary judgment to defendants-appellees the United States of America (“the Government”), Just Management Corporation (“JMC”), 100-10 67th Road Condominium Association (“the Association”), and Preferred 100-10 67th Road Condominium Corporation (“Preferred”). For the reasons set forth below, the order of the district court is affirmed.
BACKGROUND
Plaintiff Irving Kazanoff and his wife, Shelley Kazanoff, rented apartment 2J in the building at 100-10 67th Road, Forest Hills, New York. The building was converted to a condominium in 1984. The Association is the owner of the building. Preferred is the owner of several apartments in the building, including the apartment rented by Irving and Shelley Kazanoff. JMC is the managing agent of the building at 100-10 67th Road, pursuant to a written contract with the Association.
On July 21, 1987, Shelley Kazanoff was brutally and tragically assaulted and murdered in her apartment by William Deliu and Daniel Rodriguez, the son of her longtime acquaintance, Elsie Rodriguez. Rodriguez and Deliu had arrived at the building at approximately 9:30 a.m. and passed through the street door, which has no lock, into the building’s vestibule. They rang the intercom to the Kazanoffs’ apartment, but received no answer. Rodriguez then tried unsuccessfully to “jimmy” the door open using a plastic credit card. Rodriguez and Deliu stayed in the vestibule for approximately one hour, until they were able to enter through the locked lobby door as Charles Anderson, a United States Postal Service mail carrier, exited the building.
Anderson has been a letter carrier for the United States Postal Service since approximately 1950. As part of his Postal Service training Anderson received instruction on motor safety and on the necessity of being courteous to the public. Anderson was not instructed by the Postal Service to screen persons entering buildings, nor was Anderson told to question persons while on his postal route to make sure that their presence in any particular place was lawful.
The building at 100-10 67th Road was part of Anderson’s mail delivery route, and had been since approximately 1985. Anderson had a key to eight of the ten apartment buildings on his route, including the building at 100-10 67th Road. When Anderson took over his route in 1985, the key to the building was left on the key chain for the route by the letter carrier formerly servicing the building. The superintendent of the building later changed the building’s locks, and gave Anderson a new key. According to the superintendent, when he gave Anderson the new key, he told Anderson to be careful with the key and not to allow unauthorized persons to gain entry into the building. Anderson does not recall this conversation.
On an average day, Anderson would arrive at the building at approximately 10:10 a.m. and leave at 10:25 a.m. Upon entering the building, he would first open the set of unlocked doors which lead into the vestibule. He would then use his key to unlock a second set of locked doors, leading into the lobby, where the mail boxes for the building’s tenants are located. It is not necessary to use a key to leave the building. Thus, upon leaving, Anderson would simply open and push his wagon through the inner doors, and then repeat the process to exit onto the street.
On July 21, 1987, Anderson entered the building using his key and delivered the mail as usual. Upon leaving the building, he noticed in the vestibule what he believed to be a boy 15 or 16 years old and a man he believed to be 30 or 35. As Anderson was exiting through the locked doors, these two people, who turned out to be Deliu and Rodriguez, entered the lobby. Anderson thought that Rodriguez and Deliu may have been tenants of the building, or possibly construction workers.
After entering, Rodriguez and Deliu walked up the stairs to the second floor and rang the bell at the Kazanoffs' apartment. Rodriguez identified himself as Elsie Rodriguez’s son (Shelley Kazanoff had known Elsie Rodriguez for at least twenty years) and told Mrs. Kazanoff that he needed to talk to her because his mother had died. Mrs. Kazanoff, dressed in her night gown, opened the door slightly, leaving the door lock chain secured, then locked the door and made two phone calls, one to Mrs. Rodriguez.
Deliu and Rodriguez waited outside the Kazanoffs’ apartment in the hallway for at least ten minutes. It is not clear from the record whether they were out of sight of the peephole. Mrs. Kazanoff left the apartment dressed to go outside, perhaps unaware that Deliu and Rodriguez were waiting in the hallway. As she left the apartment and turned to lock the door, she was attacked by Rodriguez, who held her arms while Deliu grabbed the keys and unlocked the door. Rodriguez and Deliu then dragged Mrs. Kazanoff into her apartment, where Rodriguez brutally murdered her while Deliu ransacked and looted the apartment.
At approximately 1:00 p.m., Irving Kaza-noff returned to the building, using his key to open the locked doors to enter the lobby. Both the lock on the interior set of doors leading into the lobby and the buzzer intercom system were functioning properly on that day. Kazanoff found his wife in the living room and called for an ambulance. Mrs. Kazanoff was declared dead at the scene by the New York City Medical Examiner.
Kazanoff was appointed executor of his wife’s estate by the Surrogate of Queens County on March 21, 1988. Daniel Rodriguez was convicted, after a jury trial, of the murder of Shelley Kazanoff and the burglary of the Kazanoff’s apartment and is presently incarcerated. In a separate trial, William Deliu, who had earlier confessed to participating in the murder of Shelley Kazanoff and burglarizing the Ka-zanoffs’ apartment, was acquitted on all counts of the indictment.
The only security devices at the building to prevent access by unauthorized persons were the single set of locked lobby doors and an intercom system. The entrance to the building consists of two metal frame entrance doors with glass panels which lead into a vestibule area. These exterior doors are kept unlocked. Beyond the exterior doors are two metal frame, self-closing, buzzer-activated glass doors which open into the lobby. These locked interior doors can be opened manually with a key or electronically through a lock and buzzer intercom system, located on the wall of the vestibule. Through this system, the interi- or door can be unlocked by someone in a tenant’s apartment using the electronic buzzer system.
The building superintendent testified in a deposition that he had heard of several burglaries in the building, although he was not sure exactly when they occurred. From his testimony, it appears that only one of the burglaries, if any, occurred before July 21, 1987, the day Shelley Kaza-noff was murdered. Only one of the incidents was reported directly to the superintendent; he informed JMC of each incident. The superintendent also saw a homeless man in the basement of the building on several occasions in the weeks immediately preceding Mrs. Kazanoff’s murder. Anderson did not know of any criminal activity of any kind in the building prior to the murder of Mrs. Kazanoff. Moreover, except for this case, Mr. Kazanoff did not know of any assaults in the building during the twenty-six years he had lived there. In fact, there is no specific, first hand, or documentary evidence in the record of a single crime, except that in the present case, ever occurring at the building.
Kazanoff charged the Government with negligently causing the death of his wife because Anderson, a Postal Service employee, permitted Rodriguez and Deliu to enter the building as he was leaving. Kazanoff also charged that defendants JMC, Preferred, and the Association were negligent in failing to provide necessary security for the tenants of the building. Judge Sifton granted these defendants’ motions for summary judgment, concluding that (1) no duty of care existed on the part of the Government to keep strangers from entering a lobby when its employee was leaving the building, and (2) that Kazanoff had failed to adduce facts from which a rational trier of fact could conclude that JMC, Preferred, or the Association acted unreasonably or failed to satisfy any duty owned to Kaza-noff or his decedent. Kazanoff appeals.
DISCUSSION
“ ‘Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.’” Maysonet v. KFC, Nat’l Management Co., 906 F.2d 929, 930 (2d Cir.1990) (quoting Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391, 102 L.Ed.2d 380 (1988)). Under the law of the State of New York, to establish a cause of action in negligence, a plaintiff must show (1) the existence of a duty on defendant’s part as to the plaintiff; (2) a breach of that duty; and (3) injury suffered by the plaintiff as a result of that breach. Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 535, 441 N.Y.S.2d 644, 648 (1981). We affirm because, as the district court held, the Government did not owe a duty to Mrs. Kazanoff, and the Association, Preferred, and JMC did not breach their duty to Mrs. Kazanoff.
A. The Government
The Government argues that its employee, Charles Anderson, the postal carrier, had no duty to prevent Rodriguez and Deliu from entering the building at 100-10 67th Road. “An action to recover for negligence does not lie unless there exists a duty on the part of the defendant and a corresponding right in the plaintiff.” Do-nohue v. Copiague Union Free School Dist., 64 A.D.2d 29, 32-33, 407 N.Y.S.2d 874, 877 (2d Dep’t 1978) (citing Palsgrafv. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928)). “Duty is essentially a legal term by which we express our conclusion that there can be liability.... It tells us whether the risk to which one person exposes another is within the protection of the law.” De Angelis v. Lutheran Medical Ctr., 58 N.Y.2d 1053, 1055, 449 N.E.2d 406, 407, 462 N.Y.S.2d 626, 627 (1983). “The question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is of course a question of law for the courts.” Purdy v. Public Adm’r, 72 N.Y.2d 1, 8, 526 N.E.2d 4, 7, 530 N.Y.S.2d 513, 516 (1988) (citations omitted).
“A defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.” D’Amico v. Christie, 71 N.Y.2d 76, 88, 518 N.E.2d 896, 901, 524 N.Y.S.2d 1, 6 (1987). New York courts have, however,
imposed a duty to control the conduct of others where there is a special relationship; a relationship between defendant and a third person whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person’s conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others.... Under the appropriate circumstances, the traditional master-servant relationship, the relationship between a parent and child, or the relationship between a common carrier and its passenger are examples of such relationships....
Purdy, 72 N.Y.2d at 8, 526 N.E.2d at 7, 530 N.Y.S.2d at 516; see also Pulka v. Edelman, 40 N.Y.2d 781, 783, 358 N.E.2d 1019, 1021, 390 N.Y.S.2d 393, 395 (1976).
The relationship between Anderson, the mail carrier, and Mrs. Kazanoff, a tenant in the building, bears no resemblance to the special relationships traditionally recognized by New York courts. Nevertheless, Kazanoff urges this Court to recognize the existence of a duty of care on the part of Anderson, who had been given a key to the building, to afford Mrs. Kazanoff protection from the unauthorized entry of strangers into the building.
In attempting to define the limits which circumscribe a legal duty, “not only logic and science, but policy play an important role.” De Angelis, 58 N.Y.2d at 1055, 449 N.E.2d at 407, 462 N.Y.S.2d at 627. Thus,
[¿Judicial recognition of the existence of a duty of care is dependent upon principles of sound public policy and involves the consideration of numerous relevant factors which include, inter alia: moral considerations arising from the view of society towards the relationship of the parties ...; preventative considerations, which involve the ability of the defendant to adopt practical means of preventing injury, ... the degree of certainty that the alleged injuries were proximately caused by the defendant and the foreseeability of harm to the plaintiff; economic considerations, which include the ability of the defendant to respond in damages; and administrative considerations, which concern the ability of the courts to cope with a flood of new litigation.
Donohue v. Copiague Union Free School District, 64 A.D.2d at 33, 407 N.Y.S.2d at 877 (citation omitted). “While moral and logical judgments are significant components of the analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that ‘the legal consequences of wrongs [are limited] to a controllable degree.’ ” Waters v. New York City Housing Auth., 69 N.Y.2d 225, 229, 505 N.E.2d 922, 923-24, 513 N.Y.S.2d 356, 358 (1987) (quoting Tobin v. Grossman, 24 N.Y.2d 609, 619, 249 N.E.2d 419, 425, 301 N.Y.S.2d 554, 561 (1969)). “A line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit.” De Angelis, 58 N.Y.2d at 1055, 449 N.E.2d at 407, 462 N.Y.S.2d at 627.
The district court correctly concluded that these considerations counsel against recognition of a duty of care on the part of the Postal Service to prevent unauthorized entries. First, “moral considerations” argue against the recognition of a special relationship here. The postal carrier is in no different position from any other person whose regular coming and going may justify giving him or her a key to avoid the necessity of having a tenant open the door each time they appear. Indeed, creating a duty on the part of the postal carrier to prevent entry into the building would expose every tenant and every other service person who accepts a key to liability for allowing unauthorized entries into the building, resulting in a “crushing exposure to liability.” Strauss v. Belle Realty Co., 65 N.Y.2d 399, 403, 482 N.E.2d 34, 36, 492 N.Y.S.2d 555, 557 (1985). The broad ramifications that would emanate from the implementation of a new duty in this case is an important factor “appropriately take[n] into account in fixing the orbit of duty that will necessarily control other cases as well as this one.” D’Amico v. Christie, 71 N.Y.2d at 89, 518 N.E.2d at 902, 524 N.Y.S.2d at 7.
Second, the difficulty of defining the scope of a duty to prevent unauthorized entry also weighs against recognition of such a duty. People do not generally shut doors in others’ faces, and, in some instances, such behavior puts the person required to shut the door in another’s face at risk of injury. To what lengths must a postal carrier go to prevent unauthorized entry? If a polite “I am sorry, you cannot enter here” does not deter intruders, must the postal carrier use physical force to prevent unauthorized entry? Is he or she required to put himself or herself in physical danger to safeguard the premises? Would the carrier be required to screen out all entrants, or only persons who obviously look threatening?
As to “preventative considerations”, the violent crime which took place here was, from the postman’s perspective at least, an unforeseeable, intervening act which broke the chain of causation between the postman’s actions and Mrs. Kazanoff’s injury. Moreover, it is by no means certain that having postal carriers block entry into buildings would, as Kazanoff suggests, deter would-be assailants or robbers from entering buildings. Training letter carriers to screen entrants to buildings — a daunting administrative task — addresses only one of the many ways in which law breakers enter buildings to do injury. When the orbit of the potential liability is recognized and considered together with the reality that little or no public safety increase can be expected from such a rule, there is no policy basis upon which to ground a change in the common law.
We conclude that no duty exists on the part of the Postal Service to keep strangers from entering a building while a postal carrier leaves it.
B. Owners and Manager of the Building
Kazanoff charges JMC, the Association, and Preferred, the manager and owners of the building, with negligently failing to provide adequate security for the tenants in the building. We agree with Judge Sifton that Kazanoff failed as a matter of law to establish negligence on the part of these defendants, as no rational trier of fact could conclude that any of these defendants acted unreasonably or failed to satisfy any duty owed to the plaintiff’s decedent.
The common-law duty of a landlord is to maintain his property “in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk.” Basso v. Miller, 40 N.Y.2d 233, 241, 352 N.E.2d 868, 872, 386 N.Y.S.2d 564, 568 (1976) (citing Smith v. Arbaugh’s Restaurant, 469 F.2d 97 (D.C.Cir.1972)), cert. denied, 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 399 (1973). “The law does not require the defendants to provide the optimal or most advanced security system available, but only reasonable security measures_ To hold otherwise would cast the defendants in the role of insurers of the safety of the premises.” Tarter v. Schildkraut, 151 A.D.2d 414, 415, 542 N.Y.S.2d 626, 627 (1st Dep’t 1989) (citation omitted).
Defendants argue that they fulfilled their duty of care by complying with N.Y. Multiple Dwelling Law § 50-a (McKinney 1974), which requires a landlord or owner to provide a locked door and an intercom system to prevent unauthorized public access to a multiple dwelling. It is not disputed that defendants complied with these requirements, and that the locks on the doors leading into the lobby and the intercom system were working on the day Mrs. Kazanoff was murdered. Indeed, the locked door prevented Rodriguez and Deliu from gaining access to the building, even when Rodriguez tried to “jimmy” the door open with a credit card. These defendants were only able to gain access to the building when the postal carrier opened the door to leave the building.
Nevertheless, Kazanoff contends that mere compliance with the statutory minimum in Section 50-a was not adequate in light of alleged recent criminal activity in the building — criminal activity which as-sertedly made the unauthorized entry by Rodriguez and Deliu and the murder of Shelley Kazanoff foreseeable to defendants Preferred, the Association, and JMC. “Under New York law a [landlord] is not liable for the intervening criminal acts of another unless such acts were reasonably foreseeable.” Maysonet v. KFC, Nat’l Management Co., 906 F.2d 929, 930-31 (2d Cir.1990) (citing Danielenko v. Kinney Rent A Car, Inc., 57 N.Y.2d 198, 204, 441 N.E.2d 1073, 1075, 455 N.Y.S.2d 555, 557 (1982); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519, 407 N.E.2d 451, 457, 429 N.Y.S.2d 606, 613 (1980)). “No duty of care arises ‘unless it is shown that [defendant] either knows or has reason to know from past experience “that there is a likelihood of conduct on the part of third persons ... which is likely to endanger the safety” ’ ” of those on the property. Maysonet, 906 F.2d at 931 (quoting Nallan, 50 N.Y.2d at 519, 407 N.E.2d at 457, 429 N.Y.S.2d at 613 (quoting Restatement (Second) of Torts § 344 comment f)). Thus, “a history of criminal activities in a building can give rise to a duty on the part of the building’s owner to take reasonable steps to minimize the danger to persons visiting it." Maysonet, 906 F.2d at 931 (citing Nallan, 50 N.Y.2d at 519, 407 N.E.2d at 458, 429 N.Y.S.2d at 613).
For example, in Nallan, the plaintiff was shot by an unknown assailant as he was signing a guest register in the unattended lobby of the building. Apparently the attendant had not locked the doors of defendants’ Manhattan office building when he left the lobby to attend to cleaning chores. There were 107 reported crimes in the building in the 21-month period immediately preceding the shooting, including at least 10 crimes against persons. Id. at 519-20, 407 N.E.2d at 458, 429 N.Y.S.2d at 613-14. The court held that the plaintiff had stated a prima facie case in negligence. Id. Similarly, in Miller v. New York, 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829 (1984), liability was imposed upon the State in its proprietary capacity as a landlord for failing to maintain locked doors in a state-operated college dormitory in which a resident student had been raped. There had been previous reports of nonresidents loitering in the dormitory, as well as reports from other campus dormitories of an armed robbery, burglaries, trespass and another rape.
“In sharp contrast [to these examples], the record in the case at bar contains little evidence of criminal activity prior to the date of the [assault].” Iannelli v. Powers, 114 A.D.2d 157, 162, 498 N.Y.S.2d 377, 381 (2d Dep’t 1986). Citing the testimony of the superintendent, Kazanoff asserts that there were three burglaries in the building before the time of the murder. As we have indicated, however, the superintendent was not certain when the burglaries occurred. In fact, it appears from his testimony that only one of the burglaries, if any, occurred before July 1987, when Mrs. Kazanoff was killed. Moreover, Fed.R.Civ.P. 56(e) requires affidavits based on personal knowledge. Here, the superintendent had no firsthand knowledge of any of the incidents. Thus, Judge Sifton correctly concluded that Kazanoff had not made an adequate showing of prior criminal activity in the building that would have made the attack on Mrs. Kazanoff foreseeable to Preferred, the Association, and JMC and alerted them to a duty to adopt greater security measures.
“The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relations; it is risk to another or to others within the range of apprehension” that delimits the duty’s scope. Palsgraf, 248 N.Y. at 344, 162 N.E. at 100. Because Kazanoff did not establish that defendants had specific warning that an incident such as the assault on Mrs. Kazanoff would occur, the murder of Mrs. Kazanoff was not a reasonably foreseeable act. Thus, the “intervening criminal act” of Rodriguez and Deliu constitutes a superseding cause of the injury to Mrs. Kazanoff. See Maysonet, 906 F.2d at 930.
We recognize that what constitutes reasonable care under the circumstances is ordinarily a question for the jury.
This is not to say, however, that in every case involving a landowner’s liability in negligence the question whether reasonable care was exercised must be determined by the jury.... Only in those cases where there arises a real question as to the landowner’s negligence should the jury be permitted to proceed. In all others, where proof of any essential element falls short, the case should go no further.
Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 332, 424 N.E.2d 531, 534, 441 N.Y.S.2d 644, 647 (1981) (citations omitted). “In light of the absence of prior criminal incidents or assaults on the premises of the [building] in this case, the district court properly concluded that the history of the premises could not give rise to a duty of care to protect [tenants] from criminal attacks,” Maysonet, 906 F.2d at 931 (citations omitted), by implementing greater security measures.
CONCLUSION
The order of the district court granting summary judgment to the defendants and dismissing the complaint is affirmed in all respects.
. The 100-10 67th Road Condominium Association was sued incorrectly as the “100-10 67th Road Condominium Corporation”.
. Defendants William Deliu and Daniel Rodriguez did not move for summary judgment. In his December 13, 1990 order, Judge Sifton directed Kazanoff to inform the Court within twenty days of the date of the order whether he intended to proceed against Deliu and Rodriguez. Kazanoff did not respond, and the district court accordingly entered judgment in favor of all defendants on January 15, 1991. Ka-zanoff has not appealed from the judgment in favor of Deliu and Rodriguez.
. New York law applies to the claim against the Government, which is brought pursuant to the Federal Tort Claims Act, see 28 U.S.C. §§ 1346(b), 2674 (1988), and to the common law claims against JMC, Association and Preferred, which are based on diversity jurisdiction.
. Kazanoff argues that the district court’s entry of summary judgment was particularly inappropriate in light of Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948), under which a wrongful death plaintiff in New York “is not held to the high degree of proof required in a case where the injured person may take the stand and give his version of the happening of the accident.” Id. at 80, 80 N.E.2d at 745. We note at the outset that, although this court has recognized the Noseworthy rule in negligence actions governed by New York law, see Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 208 (2d Cir.1984); Jones v. United States, 399 F.2d 936, 940 (2d Cir.1968), it is not clear whether a state rule on the sufficiency of the evidence such as the Noseworthy doctrine governs in a federal action. See Mehra v. Bentz, 529 F.2d 1137, 1139 n. 2a (2d Cir.1975) (assuming, without deciding the issue, that New York law governs the question of sufficiency of evidence); Eldred v. Town of Barton, 505 F.2d 186, 187 n. 2 (2d Cir.1974) (whether a federal rule rather than the state rule on sufficiency of evidence governs is "debatable and apparently undecided in this Circuit") (citing Park v. Village of Waverly, 457 F.2d 1139, 1140 n. 1 (2d Cir.1972); Simblest v. Maynard, 427 F.2d 1, 4-7 (2d Cir.1970); Evans v. S.J. Groves & Sons Co., 315 F.2d 335, 342 n. 2 (2d Cir.1963)).
In any event, Noseworthy is inapplicable to this case. The purpose of the Noseworthy rule "is to circumvent the situation where a tort-feasor who inflicts personal injury [would] be insulated from liability simply because the injuries produced are fatal ... and the decedent, who would have been in the best position to describe the event from plaintiffs point of view, [is] unavailable to do so.” Holiday v. Huntington Hosp., 164 A.D.2d 424, 427, 563 N.Y.S.2d 444, 446 (2d Dep't 1990) (citations and internal quotations omitted). Here, several eyewitnesses to the tragic events leading up to Shelley Kaza-noffs death, including Deliu, Rodriguez, and Anderson, have been deposed and are available to testify. More important, the issues here— relating to the actions of the postman and the security system in the building—are not ones as to which Mrs. Kazanoff was a witness. Thus, the rationale for the Noseworthy rule is absent.
Nor would application of Noseworthy "actually effect a diminution of the standard or quantum of proof as such.” Holiday, 563 N.Y.S.2d at 446. Rather, “[t]he standard of proof of continues to be proof by a preponderance of the credible evidence. The doctrine's sphere of operation is in the weight to be assigned to circumstantial evidence concerning disputed facts because the more direct and proper source of this evidence no longer exists.” Id. Thus, contrary to Kazanoffs assertions, application of Noseworthy would not diminish his burden of proof.
. Because of our conclusion that defendants were not negligent, we need not address defendants’ argument that no derivative action can be brought on behalf of a surviving spouse for loss of consortium, maintenance, contribution, care, society, services and companionship due to the wrongful death of his spouse.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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sc_certreason
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K
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
Glenn TIBBLE, et al., Petitioners
v.
EDISON INTERNATIONAL et al.
No. 13-550.
Supreme Court of the United States
Argued Feb. 24, 2015.
Decided May 18, 2015.
David C. Frederick, Washington, D.C., for petitioners.
Nicole A. Saharskyfor the United States as amicus curiae, by special leave of the Court, supporting the petitioners.
Jonathan D. Hacker, Washington, D.C., for respondents.
David C. Frederick, Brendan J. Crimmins, Jeremy S. Newman, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C., Jerome J. Schlichter, Counsel of Record, Michael A. Wolff, Sean E. Soyars, Schlichter, Bogard & Denton, LLP, St. Louis, Missouri, for Petitioners.
Anna-Rose Mathieson, Ward A. Penfold, Gabriel Markoff, Diana Rogosa, Brian Y. Chang, O'Melveny & Myers LLP, San Francisco, CA, Sergey Trakhtenberg, Rosemead, CA, Jonathan D. Hacker, (Counsel of Record), Walter Dellinger, Brian D. Boyle, Meaghan VerGow, O'Melveny & Myers LLP, Washington, D.C., for Respondents.
Opinion
Justice BREYERdelivered the opinion of the Court.
Under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829 et seq.,as amended, a breach of fiduciary duty complaint is timely if filed no more than six years after "the date of the last action which constituted a part of the breach or violation" or "in the case of an omission the latest date on which the fiduciary could have cured the breach or violation." 29 U.S.C. § 1113. The question before us concerns application of this provision to the timeliness of a fiduciary duty complaint. It requires us to consider whether a fiduciary's allegedly imprudent retention of an investment is an "action" or "omission" that triggers the running of the 6-year limitations period.
In 2007, several individual beneficiaries of the Edison 401(k) Savings Plan (Plan) filed a lawsuit on behalf of the Plan and all similarly situated beneficiaries (collectively, petitioners) against Edison International and others (collectively, respondents). Petitioners sought to recover damages for alleged losses suffered by the Plan, in addition to injunctive and other equitable relief based on alleged breaches of respondents' fiduciary duties.
The Plan is a defined-contribution plan, meaning that participants' retirement benefits are limited to the value of their own individual investment accounts, which is determined by the market performance of employee and employer contributions, less expenses. Expenses, such as management or administrative fees, can sometimes significantly reduce the value of an account in a defined-contribution plan.
As relevant here, petitioners argued that respondents violated their fiduciary duties with respect to three mutual funds added to the Plan in 1999 and three mutual funds added to the Plan in 2002. Petitioners argued that respondents acted imprudently by offering six higher priced retail-class mutual funds as Plan investments when materially identical lower priced institutional-class mutual funds were available (the lower price reflects lower administrative costs). Specifically, petitioners claimed that a large institutional investor with billions of dollars, like the Plan, can obtain materially identical lower priced institutional-class mutual funds that are not available to a retail investor. Petitioners asked, how could respondents have acted prudently in offering the six higher priced retail-class mutual funds when respondents could have offered them effectively the same six mutual funds at the lower price offered to institutional investors like the Plan?
As to the three funds added to the Plan in 2002, the District Court agreed. It wrote that respondents had "not offered any credible explanation" for offering retail-class, i.e., higher priced mutual funds that "cost the Plan participants wholly unnecessary [administrative] fees," and it concluded that, with respect to those mutual funds, respondents had failed to exercise "the care, skill, prudence and diligence under the circumstances" that ERISA demands of fiduciaries. No. CV 07-5359 (CD Cal., July 8, 2010), App. to Pet. for Cert. 65, 130, 142, 109.
As to the three funds added to the Plan in 1999, however, the District Court held that petitioners' claims were untimely because, unlike the other contested mutual funds, these mutual funds were included in the Plan more than six years before the complaint was filed in 2007. 639 F.Supp.2d 1074, 1119-1120 (C.D.Cal.2009). As a result, the 6-year statutory period had run.
The District Court allowed petitioners to argue that, despite the 1999 selection of the three mutual funds, their complaint was nevertheless timely because these funds underwent significant changes within the 6-year statutory period that should have prompted respondents to undertake a full due-diligence review and convert the higher priced retail-class mutual funds to lower priced institutional-class mutual funds. App. to Pet. for Cert. 142-150.
The District Court concluded, however, that petitioners had not met their burden of showing that a prudent fiduciary would have undertaken a full due-diligence review of these funds as a result of the alleged changed circumstances. According to the District Court, the circumstances had not changed enough to place respondents under an obligation to review the mutual funds and to convert them to lower priced institutional-class mutual funds. Ibid.
The Ninth Circuit affirmed the District Court as to the six mutual funds. 729 F.3d 1110 (2013). With respect to the three mutual funds added in 1999, the Ninth Circuit held that petitioners' claims were untimely because petitioners had not established a change in circumstances that might trigger an obligation to review and to change investments within the 6-year statutory period. Petitioners filed a petition for certiorari asking us to review this latter holding. We agreed to do so.
Section 1113reads, in relevant part, that "[n]o action may be commenced with respect to a fiduciary's breach of any responsibility, duty, or obligation" after the earlier of "six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission the latest date on which the fiduciary could have cured the breach or violation." Both clauses of that provision require only a "breach or violation" to start the 6-year period. Petitioners contend that respondents breached the duty of prudence by offering higher priced retail-class mutual funds when the same investments were available as lower priced institutional-class mutual funds.
The Ninth Circuit, without considering the role of the fiduciary's duty of prudence under trust law, rejected petitioners' claims as untimely under § 1113on the basis that respondents had selected the three mutual funds more than six years before petitioners brought this action. The Ninth Circuit correctly asked whether the "last action which constituted a part of the breach or violation" of respondents' duty of prudence occurred withinthe relevant 6-year period. It focused, however, upon the act of "designating an investment for inclusion" to start the 6-year period. 729 F.3d, at 1119. The Ninth Circuit stated that "[c]haracterizing the mere continued offering of a plan option, without more, as a subsequent breach would render" the statute meaningless and could even expose present fiduciaries to liability for decisions made decades ago. Id.,at 1120. But the Ninth Circuit jumped from this observation to the conclusion that only a significant change in circumstances could engender a new breach of a fiduciary duty, stating that the District Court was "entirely correct" to have entertained the "possibility" that "significant changes" occurring "within the limitations period" might require " 'a full due diligence review of the funds,' " equivalent to the diligence review that respondents conduct when adding new funds to the Plan. Ibid.
We believe the Ninth Circuit erred by applying a statutory bar to a claim of a "breach or violation" of a fiduciary duty without considering the nature of the fiduciary duty. The Ninth Circuit did not recognize that under trust law a fiduciary is required to conduct a regular review of its investment with the nature and timing of the review contingent on the circumstances. Of course, after the Ninth Circuit considers trust-law principles, it is possible that it will conclude that respondents did indeed conduct the sort of review that a prudent fiduciary would have conducted absent a significant change in circumstances.
An ERISA fiduciary must discharge his responsibility "with the care, skill, prudence, and diligence" that a prudent person "acting in a like capacity and familiar with such matters" would use. § 1104(a)(1); see also Fifth Third Bancorp v. Dudenhoeffer,573 U.S. ----, 134 S.Ct. 2459, 189 L.Ed.2d 457 (2014). We have often noted that an ERISA fiduciary's duty is "derived from the common law of trusts." Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc.,472 U.S. 559, 570, 105 S.Ct. 2833, 86 L.Ed.2d 447 (1985). In determining the contours of an ERISA fiduciary's duty, courts often must look to the law of trusts. We are aware of no reason why the Ninth Circuit should not do so here.
Under trust law, a trustee has a continuing duty to monitor trust investments and remove imprudent ones. This continuing duty exists separate and apart from the trustee's duty to exercise prudence in selecting investments at the outset. The Bogert treatise states that "[t]he trustee cannot assume that if investments are legal and proper for retention at the beginning of the trust, or when purchased, they will remain so indefinitely." A. Hess, G. Bogert, & G. Bogert, Law of Trusts and Trustees § 684, pp. 145-146 (3d ed. 2009)(Bogert 3d). Rather, the trustee must "systematic[ally] conside[r] all the investments of the trust at regular intervals" to ensure that they are appropriate. Bogert 3d § 684, at 147-148; see also In re Stark's Estate, 15 N.Y.S. 729, 731 (Surr.Ct.1891)(stating that a trustee must "exercis[e] a reasonable degree of diligence in looking after the security after the investment had been made"); Johns v. Herbert,2 App.D.C. 485, 499 (1894)(holding trustee liable for failure to discharge his "duty to watch the investment with reasonable care and diligence"). The Restatement (Third) of Trusts states the following:
"[A] trustee's duties apply not only in making investments but also in monitoring and reviewing investments, which is to be done in a manner that is reasonable and appropriate to the particular investments, courses of action, and strategies involved." § 90, Comment b,p. 295 (2007).
The Uniform Prudent Investor Act confirms that "[m]anaging embraces monitoring" and that a trustee has "continuing responsibility for oversight of the suitability of the investments already made." § 2, Comment, 7B U.L.A. 21 (1995) (internal quotation marks omitted). Scott on Trusts implies as much by stating that, "[w]hen the trust estate includes assets that are inappropriate as trust investments, the trustee is ordinarily under a duty to dispose of them within a reasonable time." 4 A. Scott, W. Fratcher, & M. Ascher, Scott and Ascher on Trusts § 19.3.1, p. 1439 (5th ed. 2007). Bogert says the same. Bogert 3d § 685, at 156-157 (explaining that if an investment is determined to be imprudent, the trustee "must dispose of it within a reasonable time"); see, e.g., State Street Trust Co. v. De Kalb,259 Mass. 578, 583, 157 N.E. 334, 336 (1927)(trustee was required to take action to "protect the rights of the beneficiaries" when the value of trust assets declined).
In short, under trust law, a fiduciary normally has a continuing duty of some kind to monitor investments and remove imprudent ones. A plaintiff may allege that a fiduciary breached the duty of prudence by failing to properly monitor investments and remove imprudent ones. In such a case, so long as the alleged breach of the continuing duty occurred within six years of suit, the claim is timely. The Ninth Circuit erred by applying a 6-year statutory bar based solely on the initial selection of the three funds without considering the contours of the alleged breach of fiduciary duty.
The parties now agree that the duty of prudence involves a continuing duty to monitor investments and remove imprudent ones under trust law. Brief for Petitioners 24 ("Trust law imposes a duty to examine the prudence of existing investments periodically and to remove imprudent investments"); Brief for Respondents 3 ("All agree that a fiduciary has an ongoing duty to monitor trust investments to ensure that they remain prudent"); Brief for United States as Amicus Curiae7 ("The duty of prudence under ERISA, as under trust law, requires plan fiduciaries with investment responsibility to examine periodically the prudence of existing investments and to remove imprudent investments within a reasonable period of time"). The parties disagree, however, with respect to the scope of that responsibility. Did it require a review of the contested mutual funds here, and if so, just what kind of review did it require? A fiduciary must discharge his responsibilities "with the care, skill, prudence, and diligence" that a prudent person "acting in a like capacity and familiar with such matters" would use. § 1104(a)(1). We express no view on the scope of respondents' fiduciary duty in this case. We remand for the Ninth Circuit to consider petitioners' claims that respondents breached their duties within the relevant 6-year period under § 1113, recognizing the importance of analogous trust law.
A final point: Respondents argue that petitioners did not raise the claim below that respondents committed new breaches of the duty of prudence by failing to monitor their investments and remove imprudent ones absent a significant change in circumstances. We leave any questions of forfeiture for the Ninth Circuit on remand. The Ninth Circuit's judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Robert E. WRIGHT; Barbara J. Wright, Plaintiffs-Appellants, v. NATIONAL WARRANTY COMPANY, L.P.; National Warranty, Inc.; Bumper to Bumper Program, Inc.; AI Automotive Corporation; Rose, Jackson, Brouillette & Shapiro; W. Thomas Boothe; Lee Synnott; Leonard Rose, Defendants-Appellees.
No. 90-6467.
United States Court of Appeals, Sixth Circuit.
Argued Aug. 2, 1991.
Decided Jan. 9, 1992.
Gerald A. Smith, Jr., Blackburn, Little, Smith & Slobey, Nashville, Tenn. (argued and briefed), for plaintiffs-appellants Robert E. and Barbara J. Wright.
Frank S. King, Jr. (argued), John H. Yardley (briefed), King & Ballow, Nashville, Tenn., for defendants-appellees Nat. Warranty Co., L.P., Nat. Warranty, Inc., Bumper to Bumper Program, Inc., AI Auto. Corp., Rose, Jackson, Brouillette & Shapiro, W. Thomas Boothe, Lee Synnott and Leonard Rose.
Before NELSON and SUHRHEINRICH, Circuit Judges, and HOLSCHUH, Chief District Judge .
The Honorable John D. Holschuh, Chief District Judge for the Southern District of Ohio, sitting by designation.
SUHRHEINRICH, Circuit Judge.
Plaintiffs Robert and Barbara Wright appeal from the district court’s grant of summary judgment in favor of defendants in this federal securities action. For the reasons that follow, we affirm in part, reverse in part and remand.
I.
This case involves the transaction by which plaintiffs were sold equity interests in defendant National Warranty Company, L.P., (“NWP”) and National Warranty, Inc. (“NWC”). NWC was formed for the purpose of implementing a program which would offer to small independent or regional companies lifetime warranties on automobile repair parts and labor competitive with warranties offered by national corporations. NWC planned to sell the warranty certificates to warehouse distributors who owned $100,000 in equity interests. The warehouse distributors would sell warranty coverage to consumers, who then would be able to redeem their lifetime warranties from any NWC dealer, who would in turn seek reimbursement from NWC.
It was determined that the proposed program would need $6,000,000 in funding. Of this amount, $2,000,000 was to be raised through the sale of stock in the new corporations, to be priced in $100,000 units. The remaining $4,000,000 was to be raised by the sale of lifetime warranty certificates to warehouse distribution facilities, such purchases being made prior to the facilities actively offering the certificates for sale.
The terms and conditions of the offering were set forth in the Private Placement Memorandum (“PPM”) (a prospectus), dated November 21, 1988. Contained within the PPM were various proforma financial statements, including a “Proforma Income Statement,” “Proforma Cash Flow,” “Certificate Sales,” “Dealer Enrollment Assumptions,” and “Dealers Sold.” Under the category marked “RISK FACTORS,” PPM stated in part:
The market for or demand for the Partnership’s product is unknown. The Financial Exhibits have been prepared based upon certain assumptions concerning sales, as set forth therein. However, the level of sales assumed in the Financial Exhibits may not be obtained or obtainable, which would adversely affect the economic performance of the Partnership.
NWC decided to hire a financial officer to handle its affairs. On December 20, 1988, plaintiff Robert Wright was interviewed for a job as Vice-President of Finance (“VPF”) and Chief Financial Officer (“CFO”) of NWC. At the interview plaintiff received a copy of the PPM. He was hired on December 28, 1988, and began work on January 3, 1989. As VPF and CFO, Wright was personally responsible for preparing the monthly profit and loss statements, cash flow statements, and balance sheets. Plaintiff also approved and signed all stock certificates, invoices, and wrote and signed all checks. He was also responsible for the collection efforts of NWC. In his capacity as Secretary and Treasurer, plaintiff attended all meetings of the Board of Directors of NWC. He also revised the income statement set forth in the PPM several times.
On March 29, 1989, approximately three months after he began employment, plaintiff and his wife purchased a $100,000 unit of NWC securities, which are the subject of this litigation.
By May 3, 1989, AI, NWC’s largest proposed customer, informed NWC that it would not purchase more than the one $100,000 unit of NWC’s repair warranty certificates it had already purchased. Even though AI had not contractually committed to do so, NWC had anticipated and relied in its projections on the fact that AI would purchase twelve additional $100,000 units of NWC’s certificates. On May 17, 1989, a special meeting of NWC’s board was held. Wright attended and briefed the directors on NWC’s financial status. In his affidavit Wright stated that at this meeting he was informed for the first time that AI never committed to invest $100,000 per warehouse; and further that all of the Board understood that AI had no legal commitment to make such an investment.
Plaintiff attended another Board meeting on June 20, 1989. At that meeting, he allegedly demanded that his investment be returned, stating that had he been aware of AI’s lack of commitment to the warranty program and financial difficulties, he would never have purchased the securities. On July 4, 1989, plaintiff was terminated due to the financial difficulties of NWC. At that time, he formally tendered his securities and demanded a refund of his investment.
Plaintiffs brought suit on March 27, 1990, alleging inter alia, violation of the federal securities laws, including: (1) section 12(1) of the Securities Act of 1983 (“the Act”), 15 U.S.C. § .77/(1), based on defendants’ offerings and selling securities which were not registered with the Securities and Exchange Commission (“SEC”) and which did not meet the requirements necessary to exempt them from registration; (2) section 12(2) of the Act, 15 U.S.C. § 77i(2), based on allegedly untrue statements or omissions of material fact in written and oral communications made by defendants to plaintiffs; (3) , section 10(b) of the Securities Exchange Act of 1934 (“the Exchange Act”), 15 U.S.C. § 78j(b), and Rule 10b-5 thereunder; and violation of section 17(a) of the Act, 15 U.S.C. § 77q(a).
The district court granted defendant’s motion for summary judgment on the grounds that Robert E. Wright’s status as an “insider” and his access to information precluded any recovery under the Act and the Exchange Act; and that defendants qualified for an exemption from registration pursuant to section 4(2) of the Act, 15 U.S.C. § 77d(2). This appeal followed.
II.
A.
Plaintiffs argue that the district court erred in concluding as a matter of law that the securities offered and sold by defendants qualified for an exemption from registration with the SEC. The district court found that defendants met their burden of proving that they qualified for an exemption from registration pursuant to section 4(2) of the Act, 15 U.S.C. § 77d(2), and 17 C.F.R. § 230.501-508, Regulation D, by making the requisite filings with the appropriate federal and state authorities.
Section 12(1) of the Act provides in part that “any person who ... offers or sells a security in violation of Section 77e of this title shall be liable to the person purchasing such security from him,” and authorizes appropriate remedies for such violation. 15 U.S.C. § 111 (1). Section 5 of the Act, 15 U.S.C. § lie, in turn makes it unlawful for any person, directly or indirectly, to make use of any means of communication in interstate commerce or the mails to sell such security through the use or medium of any prospectus unless a registration statement for such security has been filed with the SEC.
The Act also creates exemptions to the registration requirements. Section 4(2) of the Act provides that the provisions of section lie shall not apply to “transactions by an issuer not involving any public offering”, 15 U.S.C. § 77d(2); and “transactions involving offers or sales by an issuer solely to one or more accredited investors, if the aggregate offering price of an issue of securities ... does not exceed [$5,000,-000].” Id. § 77d(6). Furthermore, pursuant to section 3(b) of the Act, 15 U.S.C. § 77c(b), the SEC has promulgated Regulation D, 17 C.F.R. 230.501-508, which establishes various “safe harbor” rules for offerings that satisfy conditions sufficient to invoke the section 4(e) exemption. Rule 505 of Regulation D provides as follows:
§ 230.505 Exemption for limited offers and sales of securities not exceeding $5,000,000.
(a) Exemption. Offers and sales of securities that satisfy the conditions in paragraph (b) of this section by an issuer that is not an investment company shall be exempt from the provisions of section 5 of the Act under section 3(b) of the Act.
(b) Conditions to be met-{l) General conditions. To qualify for exemption under this section, offers and sales must satisfy the terms and conditions of §§ 230.501 and 230.502.
(2) Specific conditions-fi) Limitation on aggregate offering price. The aggregate offering price for an offering of securities under this § 230.505, as defined in § 203.501(c), shall not exceed $5,000,000, less the aggregate offering price for all securities sold within the twelve months before the start of and during the offering of securities under this section in reliance on any exemption under section 3(b) of the Act or in violation of section 5(a) of the Act.
(ii) Limitation on number of purchasers. There are no more than or the issuer reasonably believes that there are no more than 35 purchasers of securities from the issuer in any offering under this section.
Rule 501 of Regulation D sets forth definition and terms used in Regulation D. Rule 501(a) defines the term “accredited investor” as follows:
(а) Accredited investor. Accredited investor shall mean any person who comes within any of the following categories, or who the issuer reasonably believes comes within any of the following categories, at the time of the sale of the securities to that person:
(4) Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer;
(5) Any natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his purchase exceeds $1,000,000;
(б) Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year;
(8) Any entity in which all of the equity owners are accredited investors.
Regarding the disclosure requirements of an offering intended to be exempt under Regulation D, Rule 502(b)(1) provides as follows: “If the issuer sells securities under § 230.505 or § 230.506 to any purchaser that is not an accredited investor, the issuer shall furnish the information specified in paragraph (b)(2) of this section to such purchaser a reasonable time prior to sale.” In other words, if the sale of securities is made exclusively to accredited investors, there are no registration requirements.
Defendants claimed exemption under Regulation D, and argued that they had complied with the requirements of 17 C.F.R. § 230.502-503. In support of that assertion, defendants offered the affidavit of Tad F. Trombley, an attorney with defendant Rose, Jackson, firouillette & Shapiro.- Trombley testified that he had complied with the requirements of 17 C.F.R. 230.503(a) and (b). On appeal plaintiffs contend that the sections relied upon by defendants do not provide exemptions from registration but merely contain definitions and conditions to be met. Thus plaintiffs contend that because defendants neither identified the rule under which they claimed an exemption nor offered evidence of their compliance with the conditions set forth in Regulation D summary judgment was improper.
This argument is without merit. First, Trombley’s affidavit stated that the technical requirements found in 230.501-503 were satisfied. The affidavit also states that the Form D was duly filed with the SEC in accordance with 17 C.F.R. 230.-503(d). Further, it is undisputed that the amount of the offering was $1,900,000, clearly within the limits set forth in Rule 505. Finally, plaintiffs attested to the fact that they fit within one of the definitions of an accredited investor set forth in Rule 501(a). The district court did not err in finding no genuine issue of material fact.
Plaintiffs also argue that the exemption is not available since Mrs. Wright is not an accredited investor. We likewise reject this argument since Wright and his wife specifically warranted and represented in the subscription agreement, which closely parallels the language in Rule 501(a)(4)-(6) and (8) of Regulation D, that they were accredited investors. In addition, Wright represented himself to defendants as a sophisticated businessman and was also a fiduciary to the shareholders of NWC and NWP at the time he executed the subscription agreement. Finally, any failure to comply with the rules regarding Mrs. Wright was harmless error within the meaning of 17 C.P.R. 230.508(a).
B.
Plaintiffs also contend that the district court erred in concluding as a matter of law that Robert E. Wright’s status as an “insider” precluded any recovery under the Exchange Act and the Act. We examine this issue under each Act in turn.
1.
Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, prohibit an issuer from making public statements that are untrue or materially misleading because of material omissions. Levinson v. Basic Inc., 786 F.2d 741, 745-46 (6th Cir.1986), vacated and remanded on other grounds, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). One of the elements of a section 10(b)/Rule 10b-5 claim, and the only element which concerns us here, is that of justifiable reliance on the defendant’s material misrepresentations or omissions. A recklessness standard is to be used in determining whether the plaintiff justifiably relied on a misrepresentation or omission. Molecular Technology Corp. v. Valentine, 925 F.2d 910, 918 (6th Cir.1991) (citing Zobrist v. Coal-X, Inc., 708 F.2d 1511, 1516 (10th Cir.1983)).
Defendants urge us to rule that Wright’s status as an “insider” forecloses recovery; or in other words, that his position within the company negates any finding of “justifiable reliance” on his part on the alleged misrepresentations and omissions of material fact. We decline to adopt such an absolute rule. As the Ninth Circuit has stated:
The label “insider” ... is not determinative of the rights and liabilities of those persons who are suing and being sued for 10b-5 violations. The term “insider” is simply a shorthand description of those people who, by reason of their activities within a corporation, have access to information capable of being exploited, or information that would negate the harmful effects of a nondisclosure or misrepresentation. A director, officer, or even the president of a corporation often has that superior knowledge and information, but neither the knowledge nor the information invariably attaches to those positions.
Rosenbloom v. Adams, Scott & Conway, Inc., 552 F.2d 1336, 1338-39 (9th Cir.1977) (citations omitted). Rather, a plaintiff’s insider status is one factor to be considered in evaluating whether a plaintiff’s reliance was justified.
While it is undisputed that Wright was a sophisticated investor and had access to pertinent information regarding NWC’s financial condition and business plans, the record does not establish that Wright was a “insider” with respect to National Warranty’s customers&emdash;or more specifically whether Wright had access to information on the financial condition and business plans of the biggest customer, AI Automo- tive. Plaintiff Robert Wright swore in his affidavit, which is corroborated by his dep- when determining osition testimony, that he “did not have access to any information or documents which demonstrated, or might demonstrate, the financial condition or business plans of AI Automotive;” and defendants have not shown that there was no genuine issue as to the fact of such access. Thus it cannot be said as a matter of law that plaintiffs’ reliance was unreasonable. The district court therefore erred in granting summary judgment on the section 10(b)/Rule 10b-5 claim.
2.
Plaintiffs also argue that the district court erred in concluding as a matter of law that Wright’s status as an “insider” precluded any recovery under section 12(2) of the Act, 15 U.S.C. § 711(2). Section 12(2) provides that any person who “offers or sells a security ••• by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact” may be liable to an unknowing purchaser. 15 U.S.C. § 111(2). Unlike a section 10(b)/ Rule 10b-5 claim, however, reliance on alleged misrepresentations or omissions is not an element of a section 12(2) cause of action. As explained by the Tenth Circuit:
The standards for bringing a claim under section 10(b) and Rule 10b-5 differ from those governing section 12(2). Under Rule 10b-5, unlike section[ ] 12(2) ... a purchaser must show justifiable or reasonable reliance on the defendant's misrepresentations in order to prevail.
Section 12(2), on the other hand, has no requirement of justifiable reliance on the part of a purchaser. Because of this, a purchaser’s investment sophistication is immaterial to a section 12(2) claim. A purchaser has no duty to investigate a seller’s possible fraud and need not verify a statement’s accuracy. Further, cases setting forth the elements of a section 12(2) claim typically state simply that the plaintiffs must prove that they had no knowledge of any untruth or omission.
MidAmerica Federal S & L v. Shear-son/American Express, Inc., 886 F.2d 1249, 1256 (10th Cir.1989) (internal quotations and citations omitted). See also Davis v. Avco Financial Services Inc., 739 F.2d 1057, 1068 (6th Cir.) (it is clear that scienter and reliance are not prerequisites for recovery under section 12(2)), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 381 (1985); Ballay v. Legg Mason Wood Walker, Inc., 925 F.2d 682, 689 (3rd Cir.1991) (same); Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 965 (9th Cir.1990) (same); Sanders v. John Nuveen & Co., Inc., 619 F.2d 1222, 1229 (7th Cir.1980) (plaintiff under section 12(2) is not required to prove due diligence), cert. denied, 450 U.S. 1005, 101 S.Ct. 1719, 68 L.Ed.2d 210 (1981). Thus, the statute bars recovery only when a plaintiff has actual knowledge that a representation is false or knows that existing information has been withheld.
In the instant case, the district court based its decision entirely upon Wright’s alleged access to the information and lack of due diligence in discovering it. But as noted above, Wright’s sophistication as an investor is irrelevant to a section 12(2) claim, and he was under no duty to investigate for fraud.
Furthermore, plaintiffs presented sufficient proof to create a genuine issue of material fact as to their lack of actual knowledge. It is undisputed that the PPM in this case does not contain information regarding AI’s financial difficulties or that AI never committed to invest $100,000 per warehouse. In addition, Wright stated in his affidavit that he had no knowledge as to these omissions and that the Board knew all along but did not inform him. Thus, because the district court relied on a factor that is not an element of a section 12(2) claim and plaintiffs have raised sufficient proof to create a genuine issue of material fact as to their lack of actual knowledge, we conclude that summary judgment as to the section 12(2) count was inappropriate.
Accordingly, we hereby AFFIRM the district court’s grant of summary judgment as to plaintiffs’ section 12(1) claim; and REVERSE and REMAND as to the section 10(b)/Rule 10b-5 claim and section 12(2) claim for further proceedings consistent with this opinion.
. In order to prevail on a section 10(b)/Rule 10b-5 claim, a plaintiff must establish (1) scien-ter on the part of the defendant; (2) materiality of the alleged misrepresentations or omissions by defendant; (3) actual reliance by plaintiff upon the defendant’s misstatements or omissions, and (4) justifiable reliance. Cavalier Carpets, Inc. v. Caylor, 746 F.2d 749, 753 n. 16 (11th Cir.1984); Dupuy v. Dupuy, 551 F.2d 1005, 1014 (5th Cir.), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977); accord, Levinson, 786 F.2d 741. See also Mansbach v. Prescott, Ball & Turben, 598 F.2d 1017, 1026 (6th Cir.1979).
. In a "non-insider” context, this court has considered the following noninclusive list of factors whether a plaintiffs reliance on an alleged misrepresentation or omission is reckless:
(1) Thesophistication of expertise of the plaintiff in financial and securities matters; (2) the existence of long standing business or personal relationships; (3) access to the rele- vant information; (4) the existence of a fidu- ciary relationship; (5) concealment of the fraud; (6) the opportunity to detect the fraud; (7) whether the plaintiff initiated the stock transaction or sought to expedite the transac- tion; and (8) the generality or specificity of the misrepresentations.
Molecular Technology,925 F.2d at 918 (citations omitted). (citations omitted).
. In order to establish a section 12(2) violation, a plaintiff must show that (1) defendants offered or sold a security, (2) by the use of any means of communication in interstate commerce; (3) through a prospectus or oral communication; (4) by making a false or misleading statement of a material fact or by omitting to state a material fact; (5) plaintiff did not know of the untruth or omission; and (6) defendants knew, or in the exercise of reasonable care could have known of the untruth or omission. Ballay v. Legg Mason Wood Walker, Inc., 925 F.2d 682, 687-88 (3rd Cir.1991).
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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.
EASTERN VENETIAN BLIND CO. v. ACME STEEL CO.
No. 6176.
United States Court of Appeals Fourth Circuit.
Argued Jan. 8, 1951.
Decided April 5, 1951.
John Vaughan Groner, New York City (Fish, Richardson & Neave, New York City, William .H. Webb, Morton Burden, Jr., Pittsburgh, Pa., and Morton M. Robinson, Baltimore, Md., on the brief), for appellant.
Glen E. Smith, Harold Olsen, and Edward R. Johnston, Chicago, Ill. (R. Dorsey Watkins, Baltimore, Md., on the brief), for appellee.
Before PARKER, SOPER and DOBIE, Circuit Judges. - ■
DOBIE, Circuit Judge.
Acme Steel Company (hereinafter called Acme) instituted in- the United States District Court for the District of Maryland, against The Eastern Venetian Blind Company (hereinafter called Eastern) a civil action for patent infringement. The four patents in suit, owned by Acme and all covering slats for Venetian blinds, were in chronological order: (1) Wilson, No. 2,294,434, (1942) (hereinafter called First Wilson); Morse, No. 2,315,640, (1943); Hunter, No. 2,337,047, (1943); and Wilson, No. 2,338,678, (1944) (hereinafter called Second Wilson).
Infringement of all four patents was admitted by Eastern, but Eastern attacked the validity of all the patents and interposed other defenses. The District Court held all the patents valid and infringed, and decided against Eastern on all the defenses interposed by Eastern. The case is before us on. Eastern’s appeal.
We first consider the inherent validity of the four patents in suit, apart from the defenses interposed by defendant — Acme’s alleged misuse of the patents to secure a monopoly of unpatented material and the defense that Acme is foreclosed from any relief on the ground of laches and estoppel.
First Wilson, No. 2,294,434, presents, we think, the clearest case of validity of any of the patents in suit. This is a method and apparatus patent for forming Venetian blind slats and material therefor. This patent is described as follows in the District Judge’s opinion: “As stated in this patent, the invention which it is alleged to embody involves the discovery that metal Venetian blind slats, having a concave cross section, may be quickly and economically formed by a rolling and bending process which is carried out in two stages, in the first of which the metal strip is stretched in the region between its edges, leaving the edges substantially unstretched; while in the second stage the metal is bent transversely and the edges are stretched, thus producing a properly concave straight strip having parallel edges.” [93 F.Supp. 234.] We think that the two-step process of first deliberately producing the buckling of the slat by center stretching and then removing the buckle by edge stretching, and the mechanism for carrying out this two-step process was entirely new. Its commercial success should also be considered to resolve any doubts as to its novelty and utility.
There is not merit in Eastern’s contentions that this patent is a mere aggregation of known elements or that there is insufficient disclosure in the claims and specifications of the patent. Nor is this patent invalid under the prior art. There is nothing in Potter, Westaway, Bailey or Ainsworth which in reality could be said to read on First Wilson.
We think the Morse patent, No. 2,315,640, is invalid for lack of invention. There are two claims in this patent which are very brief and which we think are too broad. These two claims read as follows:
“1. A metal Venetian blind slat comprising a strip of material having a single convex-concave curve from edge to edge, the curve being about a single center, the material being normally substantially straight in a longitudinal line, and the material having sufficient resilience to be coiled upon itself and when released to resume its original, substantially straight form by its inherent resilience.
“2. A metal Venetian blind slat comprising a strip of material of single thickness from edge to edge and continuously and gradually curved from edge to edge, the material being normally substantially straight in a longitudinal line and of sufficient resilience to be coiled upon itself and when released to resume its original, substantially straight form by its inherent resilience.”
This is a product patent. All that Morse really contributed was a requirement that the steel should be resilient so that when coiled, it would spring back to its original shape. While none of the prior patents seemed to specify in precise terms that the steel should be resilient, this is rather implied in the prior art and one skilled in the art would conclude that the more resilient the steel, the better it would be suited for Venetian blind slats. As we said in Goldman v. Polan, 4 Cir., 93 F.2d 797, 799: “It is well settled that ‘it is not invention to substitute superior for inferior materials.’ ” See, also, Slayter Co. v. Stebbins-Anderson Co., 4 Cir., 117 F.2d 848, 851. In the Far-rand product, though it is in a somewhat different field, there is the requirement that the metal be sufficiently flexible to permit its being rolled or coiled, its stiffness and resiliency being sufficient to cause it to remain in, or to return to a straight or unrolled condition, when it is released or free to move. Stiffness and resiliency are characteristics of high carbon steel. Particularly germane in the prior art here is the Moore patent, No. 1,949,653, which discloses a metal slat strikingly similar to Morse. Also might be cited here the Buck, the Ainsworth and the Potter patents. The claims of Morse are not directed to any combination but rather to a single homogeneous article, and see again the Goldman case, where we said: “it is not invention to apply an old material to a new or analogous use or subject.” Finally, the very broad claims of the Morse patent are not appreciably limited by the rather brief specifications.
We think the Hunter patent, No. 2,337,047,. is valid. This is a method and apparatus patent. Hunter’s use of die blocks set at different angles is sufficiently novel to constitute invention. In the prior art, there is nothing similar to Hunter with the exception of First Wilson, and Hunter’s mechanism and process present patentable differences from First Wilson. Any conflict between Hunter and First Wilson is academic for the purposes of this suit, since both patents are owned by Acme. Hunter proceeds on the theory of starting with more perfectly formed steel than Wilson and asserts that the Hunter die blocks, compared with the First Wilson crowned rollers, provide an improved method of selectivity stretching as well as easier adjust-ability of the amount of stretch. We find no merit in Eastern’s contentions that Hunter was not really the inventor and that Hunter involves inadequate disclosure.
Claim 3 of Hunter (a typical apparatus claim) and Claim 8 of Hunter (a typical method claim) are here set out:
“3. The combination in apparatus for stretching a longitudinal portion of a long substantially flat metal strip, of a plurality of sets of die blocks each having a longitudinal passage therethrough which is of such non-planar cross section transversely of the strip that said strip may be moved through said passages without affecting the permanent transverse forming of the strip, said passages in said die blocks being relatively inclined longitudinally.
“8. The method of producing a substantially flat elongated metal strip having its central portion elongated with respect to its edge portions, which consists in feeding the strip endwise and maintaining longitudinal tension therein while moving the strip through a plurality of successive longitudinally straight, transversely bowed confining passages which are relatively inclined longitudinally of the strip, maintaining the transversely acting stresses in the strip during said movement below the elastic limit of said metal, and compelling different portions of the strip which are laterally displaced from each other to follow paths of different lengths in passing from one of said passages to the other.”
Second Wilson, No. 2,338,678, ap: pears to us to be a valid patent. This is a method and apparatus patent, designed as an improvement on First Wilson. This improvement consists essentially of adding a third stage to the two-stage process of First Wilson. Under this third stage, the transversely curved strip material, after passing through the forming rolls of the second stage, is flexed in a direction transverse to its line of travel, whereby it becomes buckled or progressively flattened by the removal from its successive portions of a large part of the transverse curvature that had been imparted by the forming rolls. After passing through the flattening operation, the transverse curvature returns, but to a lesser degree, to the strip, due to its resiliency. In this manner a greater degree of curvature is removed from the strip material which has a greater thickness, thus producing the result that the strip material is caused to assume approximately the same transverse curvature. There is nothing in the prior art that anticipates this disclosure. Second Wilson seems to embody a rather clear advance over First Wilson and Hunter, and there is certainly nothing anticipatory in Morse. There is no merit in the defense here again asserted that Second Wilson is a mere aggregation as opposed to a combination. We think the District Judge was right in upholding the assertion that Second Wilson produces a uniformity of the lateral arc in a manner not previously disclosed. Nothing in the prior art discloses that by merely changing the direction of the strip, its gauge would then be flattened, but that when released the strip would snap back with a uniform lateral arc to a straight longitudinal form.
The defendant seeks to escape the effects of its infringement by setting up the contention that Acme has not come into court with clean hands in that it has established a sham licensing system under the patents designed to secure for it a monopoly in the sale of unpatented goods and has thereby violated the established rule that a patent owner may not exact as a condition of a license that unpatented materials used in connection with the invention shall be purchased only from the licensor, and if he does so, relief against an infringer will be denied. Carbice Corp. v. Am. Patents Corp., 283 U.S. 27, 31, 51 S.Ct. 334, 75 L.Ed. 819; Mercoid Corp. v. Mid-Continent Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376.
The First Wilson patent, as we have seen, describes a process which is carried out in two stages, in the first of which the metal strip is stretched between the edges while in the second stage the edges are stretched, thus producing the concave strip which constitutes the slat in the finished product. Acme was not equipped to manufacture, sell and install completed blinds, and did not desire to do so. It was, however, qualified to carry on the first stage of the process and to produce the slat stock to be used in the second stage of the process. There were very few blind manufacturers in the country who were able to make the substantial investment to carry on the first stage of the process. Hence it was decided that in order to maintain the high quality of the material, it would be best to confine the practice of the first stage to Acme and to a limited number of reliable steel producers; and since neither Acme nor the other steel producers desired to make and install the finished article, it was decided to grant to the blind manufacturers licenses to practice the second stage of the process with the use of the product of the first stage manufactured by Acme or the other steel producers.
The result was that on June 10, 1944, Acme granted to the Thomas Steel Company a license to practice the first stage only of the process under the First Wilson patent and the Hunter patent in the production of slat stock, provided that the stock so produced should be sold only to second stage licensees. On February 23, 1944, Acme granted licenses to a number of blind manufacturers to practice the second stage of the First Wilson patent with the use of slat stock produced by the practice of the first stage of the process and required an agreement from the licensees to purchase this stock either from the licensor or from producers of slat stock licensed by it. The feature in these licenses which limited second stage licensees to the purchase of steel stock from first stage licensees forms the basis of the defendant’s attack upon the license system on the ground that slat stock is not itself patented and therefore the restriction upon the purchase of the material in the second stage licenses was an attempt to extend the monopoly of the patent to cover the sale of unpatented goods.
The 1944 licenses, however, were modified by Acme prior to the trial of the case in the District Court. The evidence shows that in negotiations with a steel manufacturer with regard to the grant of a first stage license, objection was made to the restriction on the sales of slat stock to second stage licensees. Accordingly it was determined to modify the first stage licenses and subsequently to modify the original second stage licenses to eliminate this provision. On December 1, 1948, a new form of license was granted to the Thomas Steel Company wherein the proviso that the slat stock produced by the licensee should be sold only to second stage licensees was omitted; and on July 1, 1948, the second stage licenses were modified so as to eliminate the agreement that the licensee should purchase its requirements of slat stock from the licensor or second stage licensees, but in the new license the licensor agreed to furnish the licensee from time to time the names and addresses of its first stage licensees.
The present action was instituted, in the District Court on December 8, 1948, and the contention now made was advanced on the basis of a motion by the defendant for summary judgment. This motion, however, was overruled. The defendant contended that although the restriction upon the purchase of slat stock contained in the second stage licenses had been removed, nevertheless the requirement still remained as the result of the control which Acme was able to exercise over the second stage licensees. The court rejected this contention but directed that certain paragraphs of the license agreement be rephrased so as to make it entirely clear that the licensee had the right to practice the process with the use of slat stock no matter where procured, provided it was produced by the first stage process, and a provision to this effect was inserted in the judgment of the court rendered on May 19, 1950. Acme accepted this direction, cancelled the outstanding licenses, offered new licenses which incorporated the changes directed by the court, and accompanied the agreement by a letter of June 9, 1950, containing the express statement that the' change was intended to make it impossible for the license agreement to be misinterpreted as requiring that the second stage licensees purchase their requirements of slat stock either from Acme or from its first stage licensees.
Notwithstanding the verbal changes in the most recent license agreements, the defendant still contends that the second stage licensees remain under the domination of Acme and are in fact compelled to continue the purchase of slat stock from it or its first stage licensees for the reasons which may be stated as follows: There is no need for the second stage licenses unless the purpose is to compel the sale of unpatented material, from which Acme derives its chief benefit under the patent. Acme charges only a flat fee of $25.00 for each second stage license and has derived only $30,000.00 in the aggregate from this source; ¡but the sales of slat stock by Acme and its first stage licensee Thomas have amounted to thirty million dollars and the royalty paid by Thomas to Acme on sales is 4% of the selling price. A sale of slat stock by a first stage licensee carries with it under the rule of United States v. Univis Lens Co., 316 U.S. 241, 62 S.Ct. 1088, 86 L.Ed. 1408, a license to the purchaser to> finish the article, even though the purchaser has no license from the owner of the patent. Hence the second stage licenses were neither profitable to Acme nor necessary to protect the manufacturer of the finished article, but were designed to compel the manufacturers-to buy their supplies from Acme or Thomas. To this end other provisions were inserted in the license agreements to strengthen Acme’s control, and therein the licensee is still advised that first stage licensees are engaged in the manufacturing and selling of slat stock for use in making Venetian blinds and the license covers only the use of slat stock produced by the practice of the first stage and does not include the right to practice the first stage of the process. Moreover, the licensor agrees to furnish the licensee with the names and addresses of the first stage licensees. The licensor agrees to , furnish slat stock of high quality and the licensee agrees to maintain an equal quality in the manufacturing operation and the lessor reserves the right to cancel the license if the quality is not maintained. The .licensee also acknowledges the validity of the letters patent and agrees to inform the licensor of every instance of infringement which comes,to the licensee’s attention; and this agreement would require the licensee to report to Acme the name of any unlicensed person selling slat stock. It is contended that these provisions effectually continue Acme’s control over the second stage ■licensees and hence it does not clearly appear that the improper practices have been fully abandoned or that the consequences of the misuse of the patent have been dissipated and therefore the patentee is not entitled to enforce its patent rights under the rules laid down by the courts.
The defendant relies particularly on United States v. Univis Lens Co., 316 U.S. 241, 62 S.Ct. 1088, 86 L.Ed. 1408, and upon the established rule prohibiting the extension of the monopoly of a patent to cover unpatented goods, which is laid down in a line of cases of which Mercoid Corp. v. Mid-Continent Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376, is the most striking example. It is contended in the first place that in the Univis case the court condemned the sort of licensing system which Acme has installed. With this position we are unable to agree. It is true that the Univis system is strikingly similar to that of Acme in that it covered a two-step process which included the manufacture of lens blanks for eyeglass lenses, and also the process of grinding and polishing them in the finished lenses; and separate licenses were issued to different persons for the two steps with the provision that one licensee should make and sell the blanks to other licensees who in turn were authorized to buy them and finish them according to the patent and to sell them to other licensees who in turn were authorized to sell to the public, the prices in all cases being fixed by the owner of the patent. The decision turned on the price fixing feature.which the court condemned; but the court did not criticize the issuance of two classes of licenses. It held that the sale of the lens blanks which were capable of use only in practicing the patent, was a complete transfer of ownership within the protection of the patent law and a license to practice the final step ; but it assumed that the sale of blanks by an unlicensed manufacturer to an unlicensed finisher would constitute contributory infringement, and did not question that stipulations for royalties or otherwise might have been exacted as a part of the entire transaction so long as they did not seek to control the disposition of the article after the sale.
There is no illegal price-fixing feature in the Acme licenses and no impropriety in authorizing one class of licensees to manufacture slat stock and another class to finish it under such conditions as will protect the owner of the patent and procure for it the rewards incident to ownership. Furthermore, it is not true that the second stage licenses serve no lawful purpose; for even if the mere sale of slat stock by the owner or its licensee would authorize the purchaser to finish the goods under the process of the patent, the imposition of a royalty or license fee in connection therewith would not be unlawful. Indeed the license would protect the finisher from the charge of contributory infringement in case he should buy his material from an unlicensed producer, and if no second stage licenses were issued, competition in the sale of slat stock would be diminished, because the finishers wouid be obliged to buy their material from Acme or a first stage licensee to avoid the charge of contributory infringement. The infringer, in the instant case, is not being sued for contributory infringement because it sold the slat stock that is unpatentable material but because it completely infringed the patent.
Even if it is legal to establish a license system in which different persons are licensed to practice separate stages of the patented process, such a system nevertheless cannot be sustained insofar as it may be used to restrict competition in unpatented material. The Mercoid decision lays down the rule that even if an unpatented device has no use other than in the combination of the patent and is itself an integral part of the patented structure, it may not be subjected to a limited monopoly by restrictions upon its purchase by licensees under the patent. It may be questioned whether the rule extends to the present situation in which the unpatented article, that is, the slat stock, has been subjected to a part of the process covered by the patent and is to be finished in accordance therewith; but that question need not be decided since Acme, recognizing the strict limits within which the patent monopoly must be exercised, released its second stage licensees from any restriction upon their purchase of slat stock before the trial of the case in the District Court, and has also complied with and put into effect the modification of its license agreements, in accordance with the judgment of the District Court, and has notified all of its second stage licensees that they may purchase slat stock wherever they see fit. By these actions whatever defect was found in the early licenses has now been removed and the case falls within the rule which is equally well established that even if a patentee has in the past misused his patents, he is entitled to equitable relief after the misuse has been fully abandoned. See the following decisions of this court and the cases therein cited. Sylvania Industrial Corp. v. Visking Corp., 4 Cir., 132 F.2d 947, 958; Westinghouse Elec. Corp. v. Bulldog Electric Products Co., 4 Cir., 179 F.2d 139, 145-146; Baker-Cammack Hosiery Mills v. Davis Co., 4 Cir., 181 F.2d 550, 571. See, also, Novadel-Agene Corp. v. Penn, 5 Cir., 119 F.2d 764; Campbell v. Mueller, 5 Cir., 159 F.2d 803.
Eastern has also interposed the defenses of laches and estoppel based on the conversation between Wilson, representing Acme, and Rosenbaum, representing Eastern. According to the testimony of Rosenbaum, Eastern sought a complete license under Acme’s patents but this request was denied because Eastern was a Venetian blind manufacturer and- therefore entitled only to a Number Two license. Rosenbaum testified further that Wilson “explained to me, no, they don’t want me in the steel business,” and that Wilson also said to Rosenbaum: “You are going ahead anyhow. Why don’t you go ahead? We haven’t got the steel to support the industry anyhow. Go ahead. However I will let you know before bringing suit and we will have .another discussion about this.” See, in this connection, the following cases all decided by our Court: Baker-Cammack Hosiery Mills v. Davis Co., 4 Cir., 181 F.2d 550, 564—567; Florence-Mayo Nuway Co. v. Hardy, 4 Cir., 168 F.2d 778, 782-783; Ambrosia Chocolate Co. v. Ambrosia Cake Bakery, 4 Cir., 165 F.2d 693, 695; Union Shipbuilding Co. v. Boston Iron & Metal Co., 4 Cir., 93 F.2d 781, 783.
The effect of all the foregoing, we think, is not to preclude plaintiff with respect to -the future, but is merely to bar the right of -plaintiff to recover damages for infringement of the three patents held to be valid until plaintiff had purged the licenses of the objectionable restrictions. Since this purge was not completely accomplished until June 9, 1950, damages are not recoverable for any infringement prior to this date.
The decree of the District Court is affirmed in so far as it holds the First Wilson patent, the Hunter patent and the second Wilson patent to be valid and infringed and in so far is it holds Acme to be entitled to an injunction against future infringement of these three patents by Eastern. The District Court’s decree must be reversed in so far as it holds the Morse patent valid and in so far as it holds Acme entitled to damages for the infringement, up to the date of the complete purge, June 9, 1950, by Eastern of the three patents which we have held to be valid and infringed by Eastern.
The decree of the District Court, when modified according to this opinion, will be affirmed.
Modified and affirmed.
. Under the direction of the court a recital in the 1948 license agreement that the licensee desired to purchase slat stock from the licensor or its first stage licensees was eliminated.
. The evidence does not show that the second, stage licensees felt obliged .to purchase only from Acme or Thomas; and there is some evidence that they actually made purchases from others.
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_circuit
|
K
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Richard ADAMS, William Francis Elliott, James Henry Morrell, Jr., Elba Pintado-Otero, Luciano Morra, William Hinton Hockaday, Larry Henton Hockaday, James W. McMullen, Jerry Gray Hockaday, Defendants-Appellants.
No. 85-3315.
United States Court of Appeals, Eleventh Circuit.
Sept. 15, 1986.
H.B. Edwards, III, Valdosta, Ga., for Adams.
John F. O’Donnell, Ft. Lauderdale, Fla., for Elliott.
Paul D. Lazarus, Ft. Lauderdale, Fla., for Morrell.
John Lipinski, Miami, Fla., for Otero.
Armando Garcia, Tallahassee, Fla., for Morra.
Clyde M. Taylor, Tallahassee, Fla., for W.H. Hockaday.
L. Sanford Selvey, II, Tallahassee, Fla., for L.H. Hockaday.
Clifford L. Davis, Tallahassee, Fla., for McMullen.
Judith Dougherty, Tallahassee, Fla., for J.G. Hockaday.
Barbara Schwartz, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Before RONEY, Chief Judge, CLARK, Circuit Judge, and GIBSON , Senior Circuit Judge.
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
FLOYD R. GIBSON, Senior Circuit Judge:
The appellants challenge their narcotic related convictions on several grounds, including improper jury contact, prosecutorial misconduct, and sufficiency of the evidence. For the reasons discussed below, we affirm their convictions.
The government secured an eight count indictment charging nineteen individuals with various narcotics crimes as a result of their participation in a marijuana smuggling operation. The case involves two separate importations of marijuana. The first occurred in September 1979 and involved the vessel “Christine.” The Christine sailed to the Caribbean where it met a large ship that was carrying several thousand pounds of marijuana. The Christine took on 6,000 pounds of marijuana and sailed for Florida. The vessel anchored about twelve miles off the shore of Stein-hatchee, Florida. A helicopter off-loaded the marijuana and transported it to a “stash site” near Greenville, Florida. The second importation occurred in October 1979 and involved a freighter that was anchored off the coast of northern Florida. The freighter had on board several thousand pounds of marijuana. The marijuana was off-loaded by helicopter and by small boats, and taken to the stash site. Twelve of the nineteen individuals named in the indictment were tried and convicted by a jury for their participation in these importations. Nine of those twelve defendants now appeal.
I. IMPROPER JURY CONTACT
All nine appellants take issue with the district court’s ruling on the “improper jury contact” issue. Before proceedings resumed in the morning of the day on which closing arguments were given, the trial judge was informed by the marshal that one of the jurors had requested to speak to the judge. Juror Adams was brought to the judge’s chambers where, in the presence of the judge, his court personnel, and the court reporter, Juror Adams disclosed that she had been contacted on the previous night by a woman who made reference to the trial and to one of the defendants, Joe Reams. After discussing the details with the judge, Adams stated that she had not mentioned the incident to the other jurors. The judge excused Adams and replaced her with an alternate pursuant to Fed.R.Crim.P. 24(c). Adams was instructed not to discuss the incident with anyone. To avoid her having any contact with the jury, the judge had Adams wait in his chambers until the jury returned to the courtroom, at which time Adams left the courthouse. When proceedings resumed, the judge informed the parties and their counsel, outside the presence of the jury, that he had excused and replaced “the Juror Lula Adams because of a matter that developed overnight that she brought to my attention.” No inquiry was made by the government or by the defendants. When the jury was brought into the courtroom, the judge repeated that Juror Adams was excused because of “something [that] developed overnight.”
After the jury returned its verdicts, the judge interviewed the jurors individually and without counsel present. The judge learned that Juror Adams had in fact mentioned the incident in the jury room minutes before she disclosed to the judge that she had been contacted. The judge learned that when Adams arrived at the courthouse that morning, she began discussing the incident with a few jurors, but was stopped by the jurors when she revealed that the woman who approached her mentioned the trial and defendant Joe Reams. The other jurors told Adams to see the judge immediately about the incident. Adams then left the jury room and requested to see the judge. Transcripts of these post-verdict interviews and the interview with Juror Adams were prepared and given to the parties.
After counsel had an opportunity to review these transcripts, the court again interviewed the jurors separately, but with the parties and their counsel present. Counsel were allowed to submit questions to the judge, who questioned the jurors. The interviews revealed that two of the twelve jurors did not know that a juror had been contacted. The other ten jurors were aware to various degrees that Adams had been contacted. Five jurors knew that she had been contacted, but were unaware that a name had been mentioned. The other five jurors knew that she had been contacted and that Reams’ name was mentioned. The alternate also knew of a contact, but was unaware of any names mentioned.
The court found that the jury’s deliberations were not biased by the improper contact. The jurors testified that after Adams left the jury room the incident was never again discussed. Each juror testified that the improper contact did not affect the deliberations and had no bearing whatsoever on the verdicts. The court noted that the jurors were candid and forthcoming in their responses to the questions. No juror hesitated or was reluctant in answering. The court concluded that the defendants were not prejudiced, and denied all motions for mistrial and new trial.
The appellants contend that they were deprived of their constitutional right to be present at all stages of the trial and their parallel right pursuant to Fed.R.Crim.P. 43 when the court interviewed Juror Adams and the other members of the jury outside their presence and the presence of counsel. The appellants also contend that the court erred in not examining each juror in the presence of counsel immediately upon discovering that Juror Adams had been contacted. Finally, they contend that the court erred in denying their motion for new trial because they were prejudiced by the improper contact.
We hold that the appellants’ constitutional right to be present at every stage of the criminal proceedings was not violated by the court’s interview of Juror Adams. “ ‘[T]he mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right.’ ” United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (quoting Rushen v. Spain, 464 U.S. 114, 125-26, 104 S.Ct. 453, 459-60, 78 L.Ed.2d 267 (1983) (Stevens, J., concurring in judgment)). See United States v. Watchmaker, 761 F.2d 1459, 1466 (11th Cir.1985) (where trial judge took great care in framing his comments, where transcripts were made available to counsel, and where post judgment motions provided opportunity to explore any possible prejudice, there was no due process violation), cert. denied, — U.S. —, —, 106 S.Ct. 879-80, 88 L.Ed.2d 917, 917 (1986). We also hold that although the better practice would have been to notify the parties and their counsel immediately upon learning that Adams had been improperly contacted, the failure to do so and the failure to examine immediately the other jurors in the presence of the parties and their counsel does not constitute reversible error in this case because in any event the other members of the jury were not prejudiced by the improper contact. The post-verdict interviews in the presence of the parties and their counsel sufficiently demonstrate this absence of prejudice. The district judge should be afforded a considerable measure of discretion in handling these inadvertent situations.
This court recently reviewed the relevant case law in United States v. Caldwell, 776 F.2d 989, 997-98 (11th Cir.1985), and concluded that the cases fall along a continuum. At one end, the cases focus on the certainty that some impropriety exists. At the other end of the continuum, the cases focus on the seriousness of the accusation of impropriety. “The more serious the potential jury contamination, especially where alleged extrinsic influence is involved, the heavier the burden to investigate.” Id. at 998 (citing United States v. Brantley, 733 F.2d 1429 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982); United States v. Forrest, 620 F.2d 446 (5th Cir.1980)). We are concerned here with the latter end of the continuum and are guided by United States v. Forrest, which is cited in both United States v. Brantley and United States v. Phillips.
Forrest involved a similar contact to that involved in the case at bar. Prior to closing arguments a juror in the Forrest case told the trial judge that she was approached by her niece in an effort to influence her to acquit the defendants. The discussion between the juror and the judge, however, took place in the judge’s chambers in the presence of counsel for both parties. The tainted juror assured the judge that the other jurors did not know of the contact. The court excused and replaced the juror, but did not examine the other jurors. The defendants were convicted. On appeal, the Fifth Circuit remanded for a hearing to determine whether the other members of the jury were prejudiced. The court of appeals held that the trial court’s investigation into the improper contact was inadequate, and that a tainted juror’s testimony that the other jurors knew nothing about the improper contact is an insufficient basis on which to conclude that the other jurors have not been contaminated. Forrest, 620 F.2d at 457-58. “Only the other jurors can enlighten [the court] properly on this subject.” Id. at 457.
The appellants contend that the Forrest examination of the other jurors in this case should have taken place before rather than after the verdicts were rendered. Although Forrest can be read to suggest that the examination of the jurors should take place if possible before the verdicts are rendered, failure to do so in this case is not reversible error because the post-verdict interviews in the presence of the parties and their counsel demonstrate that the jurors were not prejudiced. Such post-verdict interviews are constitutionally sufficient to decide allegations of juror impartiality. See Smith v. Phillips, 455 U.S. 209, 217-18, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982); Remmer v. United States, 347 U.S. 227, 230, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). “The crucial issue is the degree and pervasiveness of the prejudicial influence.” United States v. Williams, 568 F.2d 464, 470 (5th Cir.1978). We have reviewed the transcript of the post-verdict interviews and conclude that the district court’s findings are not clearly erroneous. The jurors were not prejudiced by the improper contact. We hold, therefore, that the district court did not abuse its discretion in denying the motions for new trial on the basis of improper jury contact.
II. PROSECUTORIAL MISCONDUCT
The appellants contend that the following remarks made by the prosecutrix during the rebuttal portion of her closing arguments denied them a fair trial:
MS. SCHWARTZ (Prosecutrix): And as Bart Carver told you, dope dealers deal with dope dealers, and you have to know, you don’t find a swan in the sewer, and that’s what you get when — . [objection] [sustained]
Record XXXIII at 86.
MS. SCHWARTZ: I believe that the Government has proven the Defendants guilty — . [objection]
THE COURT: Continue. I got your point.
MRS. SCHWARTZ: I believe that the Government has proven, with the testimony and the evidence, that the Defendants are guilty beyond a reasonable doubt, [objection]
THE COURT: Continue.
Record XXXIII at 98-99. The appellants argue that the comment about “dope dealers” and “sewers” was inflamatory because it depicts the defendants as drug dealers emanating from the sewer. Their argument is without merit. The appellants have taken the prosecutrix’ statement out of context. The record clearly indicates that the prosecutrix was not referring to the defendants. Rather, she was referring to the government witnesses, whose credibility had been attacked by defense counsel on cross-examination and in closing arguments. The prosecutrix was merely reminding the jury that the government had conceded all along that its witnesses were drug dealers. Record XXXIII at 85. With respect to the remarks concerning the guilt of the defendants, the appellants contend that the prosecutrix’ expression of her personal opinion denied them a fair trial. We disagree. “When the prosecutor voices a personal opinion but indicates this belief is based on evidence in the record, the comment does not require a new trial.” United States v. Granville, 716 F.2d 819, 822 (11th Cir.1983), aff'd on rehearing, 736 F.2d 1480 (11th Cir.1984). A prosecutor may say, “ T believe the evidence has shown the defendant’s guilt, [but not,] I believe that the defendant is guilty.’ ” United States v. Morris, 568 F.2d 396, 402 (5th Cir.1978) (citations omitted). The prosecutrix’ statements in the case at bar are consistent with those allowed in Granville and Morris. We conclude, therefore, that the prosecutrix’ comments were within permissible bounds.
Appellant Pintado-Otero contends that the district court erred in denying her motion for a mistrial as a result of the following statement by a government witness:
I was told over the radio or telephone, I forget, when I was called to set up surveillance, that we had a group of Latins that were probably in town to do a dope deal and that they were making phone calls to known dopers in Miami or somewhere south.
Record XXI at 130. This statement was made despite the district court’s previous instruction to the government that its witnesses were not to testify that telephone calls were made to “known drug smugglers.” Pintado-Otero argues that the witness’ remark implies that Pintado-Otero, one of only two Latin defendants, was a narcotics dealer from Miami, making phone calls to her cohorts — “known dopers.” Pin-tado-Otero argues that the government produced no evidence, however, that she was involved in any prior narcotics transactions. Pintado-Otero concludes that consequently the remark was prejudicial.
We hold that the district court properly denied the motion for mistrial. When the evidence is withdrawn from the jury with an instruction to disregard it, “the error is cured unless the evidence is so highly prejudicial as to render the error incurable.” United States v. Benz, 740 F.2d 903, 916 (11th Cir.1984), cert. denied, — U.S. —, 106 S.Ct. 62, 88 L.Ed.2d 51 (1986). The testimony in this case was not so highly prejudicial as to render the error incurable. Indeed, any prejudice as a result of the remark was cured by the court’s immediate curative instruction, Record XXI at 145, and minimized by the fact that the remark was not repeated or referred to thereafter. See United States v. Hernandez, 750 F.2d 1256, 1259 (5th Cir.1985) (in reversing conviction the court emphasized that no instruction was given to disregard the testimony and the prosecutor attempted to exploit the prejudicial testimony in closing arguments).
III. IMPEACHMENT EVIDENCE
Appellants McMullen and the Hockadays were convicted of conspiracy to possess and possession of marijuana with the intent to distribute. Coconspirator and government witness M.L. Tucker implicated the defendants in these crimes. Through cross-examination defense counsel revealed that Tucker was serving time in prison for other crimes when he agreed to cooperate with federal officials in return for his early release from prison and immunity from prosecution for his involvement with the appellants in this case. Also on cross-examination, Tucker was asked whether his wife gave birth to their child while Tucker was in prison. Tucker responded that his child was born after he was released from prison. As part of the defendants’ case, appellant Jerry Hockaday attempted to introduce a hospital medical record through the testimony of the hospital records custodian. The medical record indicated that a woman gave birth to a child on September 9, 1982, while Tucker was in prison, and stated that Tucker was the father. Defense counsel argued at trial that the medical record was relevant for two reasons: first, it demonstrated that Tucker lied on cross-examination about the date of his child’s birth; and second, it revealed that Tucker had an additional motive to obtain an early release from prison — to be with his child. The court sustained the government’s objection that this was impeachment evidence as to a collateral matter. The appellants contend that the court erred in refusing to admit the record into evidence.
We hold that the district court did not err in refusing to admit the medical record. The birth date of Tucker’s child is clearly a collateral matter on which Tucker cannot be impeached by extrinsic evidence. See United States v. Russell, 717 F.2d 518, 520 (11th Cir.1983). Further, although the importance of exposing a witness’ motivation to cooperate with the prosecution has been long recognized in this circuit, see generally Jenkins v. Wainwright, 763 F.2d 1390, 1392 (11th Cir.1985) (and cases cited therein), cert. denied, — U.S. —, 106 S.Ct. 2290, 90 L.Ed.2d 730 (1986), we believe the cross-examination of Tucker sufficiently demonstrated his motivation to cooperate with the prosecution so that the evidence sought to be admitted was merely cumulative.
IV. SUFFICIENCY OF THE EVIDENCE
Appellants Elliott, Otero, and Morra challenge the sufficiency of the evidence against them. We review the evidence against the appellants in the light most favorable to the government, drawing all reasonable inferences in favor of the jury’s verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).
£7] Appellant Elliott was convicted of conspiracy to possess marijuana and possession of marijuana with the intent to distribute. The government’s evidence against Elliott consists of the testimony of coconspirator and government witness, George Cottage. Cottage testified that he had known Lem North, one of the masterminds of the scheme to import marijuana, for several years. In September 1979, North invited Cottage to meet North in Valdosta, Georgia, for the purpose of “brokering” the marijuana from the first importation. Cottage invited appellants Elliott and Morrell along, explaining to them the purpose of the trip. Morrell drove. The trip was unsuccessful, however, and the three returned to Florida. In November 1979, after the second importation and upon Morrell’s request, Cottage accompanied Morrell and Elliott to Valdosta, Georgia, to meet Lem North again. Before they checked into their hotel rooms, Elliott, Morrell, and Cottage met with North. North offered them a sample (three fourths of a pound) of marijuana for their prospective customers. Morrell took the sample and he and Elliott went to their adjoining hotel rooms. When Cottage arrived the prospective buyers were already in the rooms. Shortly thereafter, the police entered the rooms and found Morrell, Elliott, and Cottage together with the prospective buyers and the sample of marijuana. The strong odor of marijuana burning was present in the room. The sample matched the marijuana found at the stash site.
Elliott argues that this evidence only demonstrates his “ ‘mere presence’ in a suspicious climate.” We disagree.
For Elliott to be convicted of conspiracy to possess marijuana with the intent to distribute, “the government was required to prove beyond a reasonable doubt the existence of a conspiracy, his knowing participation in it, and his criminal intent.” United States v. Cruz-Valdez, 773 F.2d 1541, 1544 (11th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986). For Elliott to be convicted of the possession charge, “the government’s burden was to prove beyond a reasonable doubt that he knowingly possessed the marijuana, either actually or constructively, and that he intended to distribute it.” Id. We agree with Elliott that “mere presence” is insufficient to establish guilt on these charges. As this court recently recognized in Cruz-Valdez, however, the evidence in these cases “establishes not mere presence but presence under a particular set of circumstances.” Id. at 1545. We hold that from the circumstances in this case the jury could find Elliott guilty beyond a reasonable doubt as charged. See United States v. Walker, 720 F.2d 1527, 1538 (11th Cir.1983) (the existence of a conspiracy may be proved by circumstantial evidence, including inferences from the conduct of the alleged participants), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). The evidence demonstrated that Elliott accompanied Morrell to Valdosta not once but on two separate occasions for the same purpose — to broker the imported marijuana. The logical inference to be drawn from this evidence is that Elliott and Morrell had agreed to broker the marijuana and were knowingly participating in that agreement. Elliott accompanied Morrell to North’s hotel room where Morrell, Elliott’s coconspirator, obtained a sample. Both Elliott and Morell then met their prospective buyers, who sampled the marijuana. We believe that the jury also could have reasonably inferred that Elliott together with Morrell possessed the marijuana with the intent to distribute.
Appellant Pintado-Otero was convicted of conspiracy to possess marijuana with the intent to distribute, possession of marijuana with the intent to distribute, and the unlawful carrying of a firearm during the commission of a felony. The evidence against Pintado-Otero consists of the testimony of a Florida Marine Patrol Officer, and of a coeonspirator and government witness, Myra Labrador. Labrador testified that she was hired to accompany a man while he drove a motor home that was heavily loaded with marijuana. Man-and-woman combinations were needed to give the appearance of a “couple” vacationing in a motor home. Labrador testified that several other “couples” were hired to transport the marijuana in the same way. Labrador stated that she was placed in the back of a motor home with several others and taken to what was later identified as the stash site. Labrador identified appellant Pintado-Otero as one of the people in the motor home. When they arrived at the stash site, the “couples” were assigned different motor homes. The motor home in which Pintado-Otero was riding was followed from the stash site by the Florida Marine Patrol Officer who testified that Pintado-Otero’s vehicle would not stop until it approached a roadblock. The officer directed the passengers, Pintado-Otero and her daughter, to step out of the vehicle. While he was directing the driver to step out, the officer noticed Pintado-Otero place her hand on her purse. The officer instructed Pintado-Otero not to move while he removed from Pintado-Otero’s purse an automatic pistol, which was loaded and ready to fire.
Pintado-Otero argues that her mere presence in a vehicle transporting marijuana that was only accessible from the rear of the vehicle is insufficient to prove that she conspired to possess and possessed marijuana with the intent to distribute. Because these convictions must fall, her argument continues, so must the firearm conviction. We disagree.
The circumstances of Pintado-Otero’s presence in the vehicle transporting a substantial quantity of marijuana demonstrate that she was part of a conspiracy to possess and possessed marijuana. Pintado-Otero was among those people taken to the stash site for the purpose of transporting large quantities of marijuana out of Florida in motor homes. Her presence was essential to the success of the ruse — to give the appearance of a couple vacationing in a motor home. She was arrested in a motor home heavily loaded down with marijuana. The strong odor of marijuana was present in the cab of the motor home. The logical inference to be drawn from this evidence is that a conspiracy to possess the marijuana with the intent to distribute existed and that Pintado-Otero knowingly participated in it. In these particular circumstances, Pintado-Otero had no more or no less control over the progression and destination of the motor home and its contents than did the driver. Consequently, they shared at least constructive possession of the marijuana. See United States v. Maspero, 496 F.2d 1354, 1359 (5th Cir.1974). We hold that the evidence is more than sufficient for the jury to have inferred beyond a reasonable doubt that Pintado-Otero engaged in a conspiracy to possess and possessed marijuana with the intent to distribute.
Appellant Morra was convicted of conspiracy to import marijuana, conspiracy to possess marijuana with the intent to distribute, two counts of importation, and two counts of possession. John Thomas, who piloted the Christine, which was involved in the first importation, testified for the government that he was hired by appellant Morra to import the marijuana from the Caribbean to Florida. Morra told Thomas and a man named Bart Carver that the load was 20,000 pounds. Carver secured a vessel, the Christine, and prepared it for the first importation. When it was ready, the Christine sailed for the Caribbean. The vessel developed mechanical problems, and Thomas contacted Morra and defendant Ronnie Fripp, who sent a mechanic. On Morra’s instructions, Thomas sailed the Christine to the rendezvous with another ship where the Christine took on the 6,000 pounds of marijuana. When the Christine returned to Florida and arrived off the coast of Steinhatchee, Morra communicated with Thomas from a plane that circled above the vessel. Carver corroborated Thomas’ testimony, adding that Morra and Fripp were partners and that Morra assured him that there would be additional loads. Patrick Harrell testified that he was hired to “sit on the stash site.” Harrell met Morra, who Harrell stated was at the stash site when the marijuana was unloaded by the helicopters. Harrell testified that Morra, Fripp, and North were the masterminds of the scheme to import marijuana.
Morra concedes that the jury could have found him guilty beyond a reasonable doubt of conspiracy to import and importation of marijuana with respect to the first load. He argues that the evidence is insufficient, however, to support his conviction for possession of marijuana with the intent to distribute with respect to the first load. Morra’s argument is without merit. The evidence places Morra at the stash site and shows that he, Fripp, and North were partners or the masterminds in the criminal venture, exercising control over the marijuana. The logical inference is that he along with Fripp and North possessed the marijuana with the intent to distribute. Morra also argues that the evidence is insufficient to connect him to the second importation. He contends that the government proved two conspiracies to import and two conspiracies to possess marijuana with the intent to distribute. Because he was not connected with the second importation, Morra argues that his conviction on the second importation charge, the second possession charge, and the charge of a continuing conspiracy to possess marijuana must be reversed. We disagree. The government’s theory at trial was that there was one continuing conspiracy to import marijuana and one continuing conspiracy to possess marijuana with the intent to distribute. Morra and Fripp conspired to smuggle marijuana into the United States by ship and helicopter and to use Joe Reams’ property as the stash site. The testimony of the witnesses demonstrated that Morra and Fripp were partners and that they and North financed the importations and distributions. We believe that this evidence is sufficient for the jury to have inferred beyond a reasonable doubt that Morra engaged in the continuing conspiracy to possess marijuana as well as the second importation and possession of marijuana.
V. CONCLUSION
In conclusion, we hold that the appellants were not prejudiced by the improper jury contact, that the comments by the prosecu-trix during closing argument were not improper, that the government witness’ testimony was not prejudicial, that the trial court did not err in refusing to admit the collateral evidence, and that the evidence is sufficient to support the appellants’ guilt beyond a reasonable doubt. Consequently we AFFIRM the appellants’ convictions.
. Appellants Adams, Elliott, Morrell, Pintado-Otero, the Hockadays, and McMullen were convicted of conspiracy to possess and possession of marijuana with the intent to distribute. See 21 U.S.C. §§ 841, 846; 18 U.S.C. § 2. Pintado-Otero was also convicted of unlawfully carrying a firearm during the commission of a felony. See 18 U.S.C. § 924(c). Appellant Morra was convicted of conspiracy to import marijuana and conspiracy to possess marijuana with the intent to distribute. He was also convicted on two counts of importation of marijuana, and on two counts of possession of marijuana with the intent to distribute. See 21 U.S.C. §§ 952, 960, 963, 841, and 846; 18 U.S.C. § 2.
. Honorable William Stafford, United States Chief District Judge for the Northern District of Florida.
. The relevant portion of the judge’s discussion with Juror Adams follows:
JUROR ADAMS: Well, this lady came to my house last night, I don’t know what time it was. ... She told me that she was trying to get a job at Dixie Packers, that’s where I work in Madison. Somebody told her ... where I lived at and I worked at Dixie Packers, and told her to come and talk to me about was they hiring at this present time at Dixie Packers. Well, I told her that I didn’t know because I hadn’t been to work in about two weeks and I didn’t know was they hiring. I said I was going to Tallahassee every day on trial, on jury duty. ... And she come in and she said, oh, well — I asked her where was she from. She told me she was from Greenville and she had been working — she was a store manager at some store, and the man that owned the store was selling it, and that she was trying to find her another job, and she was asking me was they hiring. And she said that the man — after I told her about I was going to Tallahassee, you know, that I didn’t know about was they hiring at the time or not, then she said "Well, maybe you know the man that owns the store because he’s on trial up there.” I said, "No, I don’t think I do.” And she said, "Well, his name is Joe Reeves (sic)." I said, "No, I haven’t heard of that name.” And she said, "Well they call him Joe Ball." And she said, "He owned the store that I worked at, that I was store manager, and he’s selling the store.” And he told her that they had him on trial for finding marijuana on his land and that he didn’t know nothing about it cause he had so many acres of land that he didn’t know that the marijuana was on his land, but they was trying to send him off for it. I said, "Well, I don’t know him, no, because I’m not on that trial." And I got off the subject____
And then when she was going out the door, she said, “Well, you listen when you go back up there," she said, “You listen for his name and maybe you’ll know him and then maybe you could help him, then I won't have to find me another job because I could still keep my job, because he said he didn’t do it, he didn’t know nothing about it.” And she left.
THE COURT: Did you recognize the lady?
JUROR ADAMS: No, I didn’t know her at all. ...
THE COURT: Did she — did you mention the jury service first?
JUROR ADAMS: Yeah, I did.
THE COURT: Uh-huh. And then that’s when she — ?
JUROR ADAMS: That’s when she said, "Well, maybe you know him, the man that owns the store, maybe you know him because he’s on trial up there," and she said, "Joe Reeves.” I said, no, no, I don’t know him.” She said, "Joe Ball, they call him Joe Ball.” I said, "No, I don’t think — " I said, “No, I’m not on that trial.”
THE COURT: Have you said anything to any other jurors?
JUROR ADAMS: No....
Record XXXII at 2-7.
. Appellants argue that testimony of a juror is inherently suspect in these circumstances. The Supreme Court rejected a similar argument in Smith v. Phillips, supra, and noted that "surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.” 455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7.
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_genapel2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
KANDLE et al. v. UNITED STATES.
(Circuit Court of Appeals Third Circuit.
March 2, 1925.)
No. 3212.
I. Courts <@=332 — Equity rules promulgated by Supreme Court have force andi effect of law and apply to proceedings to abate liquor nuisance.
Equity rules promulgated by Supreme Court under Kev. St. §§ 862, 917 (Comp. St. §§ 1470, 1543), have force and effect of law and are applicable to cases brought under National Prohibition Act for abatement of liquor nuisances.
2. United States <@=124 — United States as litigant does not have attribute of sovereignty, but stands as ordinary suitor subject to equity rules.
When the United States becomes a party litigant, it divests itself of sovereignty and stands as ordinary suitor, bound by equity rules as are other litigants.
3. Courts <@=350 — Time for application for taking of deposition under equity rule, stated.
Under equity rules 47 and 50, plaintiff’s application to take depositions must be made in time for taking and filing of such depositions before lapse of 60 days from time cause is at issue.
4. Courts <@=352 — In absence of application for taking of deposition, cause may be tried as soon as it is at issue.
Under equity rules 47 and 56, if no application to take depositions is made, ease may be put on trial calendar as soon as cause is at issue.
5. Courts <@=352 — Placing suit to abale nuisance on trial calendar before expiration of time for taking depositions held not error.
In proceedings under National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.) to abate liquor nuisance, where neither party made or intended to make application to take deposition, it was not error to place case on trial calendar before time for taking and filing depositions had expired.
Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge.
Suit to abate liquor nuisance by the United States against Aaron Handle and the Paramount Realty Company. Decree for the. United States, and defendants appeal.
Affirmed.
Harold Simandl, of Newark, N. J., for appellant Handle.
James Lafferty and Porter, Zink & Lafferty, all of Newark, N. J., for appellant Paramount Realty Co.
Walter G. Winno, U. S. Atty., of Hackensack, N. J., and Harlan Besson, of Hoboken, N. J., for the United States.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
DAVIS, Circuit Judge.
The United States attorney for the district of New Jersey filed a bill of complaint against Aaron Handle and the Paramount Realty Company for maintaining a public and common nuisance at No. -557 Market street, Newark, N. J., in that they manufactured, kept, and sold intoxicating liquor there in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138(4 et seq.). Answers were filed by tho defendants, and the case, being at issue, was placed upon the trial 'calendar. The defendants Objected to a trial'at that time and moved to withdraw the case from the trial calendar on the ground that it could not be tried until the time for taking and filing depositions under equity rule 47 had expired, although admittedly neither party had made, nor intended to make, an application to take depositions. Rule 47 provides that “the court, upon application of either party, when allowed by statute, or for good and exceptional cause for departing from the general rule, to be shown by affidavit, may permit the deposition of named witnesses, to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, upon the notice and terms specified in the order.” Depositions of the plaintiff must be taken within 60 days from .the time the cause is at issue, those of the defendant within 30 days from the expiration of the time for the filing of the plaintiff’s depositions, and rebutting depositions by either .party within 20 days thereafter. Rule 56 provides that after the time has elapséd for taking and filing depositions under these rules, the ease shall be placed on the trial calendar. In other words, defendants say that there must be a delay Of 110 days after the cause is at issue before it may be placed on the trial calendar.
The mode of proof in causes in equity and of taking and obtaining evidence in federal courts shall be according to rules prescribed by tjhe Supreme Court. Section 862, Revised Statutes of the United States (United States Compiled Statutes, § 1470); section 917, Revised Statutes of the United States (United States Compiled Statutes, § 1543). The rules in question were promulgated on November 4, 1912. They have the force and effect of law and may not be disregarded. American Graphophone Co. v. National Phonograph Co. (C. C.) 127 F. 349. When the United States becomes a party litigant, it divests itself of sovereignty and stands as any ordinary suitor before the court and is bound by these rules. United States v. Barber Lumber Co. (C. C.) 169 F. 184. These equity rules are applicable to eases brought under the National Prohibition Act for the abatement of nuisances. Grossman v. United States (C. C. A.) 280 F. 683.
The real question is: What do .these two rules mean? The defendants say that their operation as to the time for taking and filing depositions and placing cases on the- trial calendar is absolute and automatic. They rely on Jewell v. State Life Insurance Co. of Indianapolis, 176 F. 64, 99 C. C. A. 372, and Quinlivan v. Dail-Overland Co. (C. C. A.) 274 F. 56, 65. The opinions in these cases contain expressions which seemingly support their contention. The first ease was decided under rule 69, which was promulgated in 1842, when the general rule was not to take testimony orally in open court but before masters. Rule 69 of the old rules allowed three months and no more for the taking of testimony. In the second case cited, the question before us was not under consideration. The court reeitatively stated the provision of the present rule 56 as to when a ease shall be placed on the trial calendar without any attempt to construe it.
Under the old rule and practice of taking testimony out of court, rule 69 came automatically into operation as soon as the cause was at issue, and a ease could not be placed on the trial calendar until the time and opportunity thus provided for taking testimony had expired. Litigants now take testimony in open court at the trial, and there is no need of delaying the trial as was necessary under the old rules. The change in the method of taking testimony was made in order to expedite litigation. This new rule prevails, unless some exceptional cause arises to prevent it. If such cause arises, it must be shown by affidavit upon application of either party to take depositions of “named witnesses.” If no application is made, neither of the rules, 47 and 56, becomes operative and testimony is taken in open court. Rule 47 is silent as.to when application shall be made. It must be made, however, before a trial is had and in time for the plaintiff to take and file.his depositions within 60 days from the time the cause is at issue'. The plaintiff may not delay, therefore, 60 days before making the application. If application is not made, the ease may be put on the trial calendar as soon as the cause is at issue, and tried at any time. But a trial may be prevented before the expiration of the time provided for taking'ahd filing' depositions by an application of either party showing the necessary facts.
When considering the.motion to remove the ease from the trial calendar, Judge Rellstab asked if either party had made or' intended to make an application to take depositions. Both parties stated that no application had been1 made and that -they did not intend to make any. Thereupon he declined to remove the case from the trial calendar, and we do not think that he committed error.
The decree is affirmed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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sc_certreason
|
L
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
HILLSBORO NATIONAL BANK v. COMMISSIONER OF INTERNAL REVENUE
No. 81-485.
Argued November 1, 1982
Decided March 7, 1983
O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, and Rehnquist, JJ., joined, and in Parts I, II, and IV of which Brennan, J., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, post, p. 403. Stevens, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Marshall, J., joined, post, p. 403. Blackmun, J., filed a dissenting opinion, post, p. 422.
Harvey B. Stephens argued the cause for petitioner in No. 81-485. With him on the briefs were Mark H. Ferguson and Robert A. Stuart.
James Silhasek argued the cause and filed a brief for respondent in No. 81-930.
Solicitor General Lee argued the cause for the United States in No. 81-930 and respondent in No. 81-485. With him on the briefs were Assistant Attorney General Archer, Stuart A. Smith, GaryR. Allen, Jay W. Miller, and David I. Pincus.
Together with No. 81-930, United States v. Bliss Dairy, Inc., on cer-tiorari to the United States Court of Appeals for the Ninth Circuit.
Briefs of amici curiae urging affirmance in No. 81-930 were filed by Jack R. White and Steven W. Bacon for Ameron, Inc.; and by Arthur A. Armstrong, pro se.
Justice O’Connor
delivered the opinion of the Court.
These consolidated cases present the question of the applicability of the tax benefit rule to two corporate tax situations: the repayment to the shareholders of taxes for which they were liable but that were originally paid by the corporation; and the distribution of expensed assets in a corporate liquidation. We conclude that, unless a nonrecognition provision of the Internal Revenue Code prevents it, the tax benefit rule ordinarily applies to require the inclusion of income when events occur that are fundamentally inconsistent with an earlier deduction. Our examination of the provisions granting the deductions and governing the liquidation in these cases leads us to hold that the rule requires the recognition of income in the case of the liquidation but not in the case of the tax refund.
I
In No. 81-485, Hillsboro National Bank v. Commissioner, the petitioner, Hillsboro National Bank, is an incorporated bank doing business in Illinois. Until 1970, Illinois imposed a property tax on shares held in incorporated banks. Ill. Rev. Stat., ch. 120, §557 (1971). Banks, required to retain earnings sufficient to cover the taxes, § 558, customarily paid the taxes for the shareholders. Under § 164(e) of the Internal Revenue Code of 1954, 26 U. S. C. § 164(e), the bank was allowed a deduction for the amount of the tax, but the shareholders were not. In 1970, Illinois amended its Constitution to prohibit ad valorem taxation of personal property owned by individuals, and the amendment was challenged as a violation of the Equal Protection Clause of the Federal Constitution. The Illinois courts held the amendment unconstitutional in Lake Shore Auto Parts Co. v. Korzen, 49 Ill. 2d 137, 273 N. E. 2d 592 (1971). We granted certiorari, 405 U. S. 1039 (1972), and, pending disposition of the case here, Illinois enacted a statute providing for the collection of the disputed taxes and the placement of the receipts in escrow. Ill. Rev. Stat., ch. 120, ¶ 676.01 (1979). Hillsboro paid the taxes for its shareholders in 1972, taking the deduction permitted by § 164(e), and the authorities placed the receipts in escrow. This Court upheld the state constitutional amendment in Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356 (1973). Accordingly, in 1973 the County Treasurer refunded the amounts in escrow that were attributable to shares held by individuals, along with accrued interest. The Illinois courts held that the refunds belonged to the shareholders rather than to the banks. See Bank & Trust Co. of Arlington Heights v. Cullerton, 25 Ill. App. 3d 721, 726, 324 N. E. 2d 29, 32 (1975) (alternative holding); Lincoln National Bank v. Cullerton, 18 Ill. App. 3d 953, 310 N. E. 2d 845 (1974). Without consulting Hillsboro, the Treasurer refunded the amounts directly to the individual shareholders. On its return for 1973, Hillsboro recognized no income from this sequence of events. The Commissioner assessed a deficiency against Hillsboro, requiring it to include as income the amount paid its shareholders from the escrow. Hillsboro sought a redetermi-nation in the Tax Court, which held that the refund of the taxes, but not the payment of accrued interest, was includible in Hillsboro’s income. On appeal, relying on its earlier decision in First Trust and Savings Bank of Taylorville v. United States, 614 F. 2d 1142 (1980), the Court of Appeals for the Seventh Circuit affirmed. 641 F. 2d 529, 531 (1981).
In No. 81-930, United States v. Bliss Dairy, Inc., the respondent, Bliss Dairy, Inc., was a closely held corporation engaged in the business of operating a dairy. As a cash basis taxpayer, in the taxable year ending June 30, 1973, it deducted upon purchase the full cost of the cattle feed purchased for use in its operations, as permitted by § 162 of the Internal Revenue Code, 26 U. S. C. § 162. A substantial portion of the feed was still on hand at the end of the taxable year. On July 2, 1973, two days into the next taxable year, Bliss adopted a plan of liquidation, and, during the month of July, it distributed its assets, including the remaining cattle feed, to the shareholders. Relying on §336, which shields the corporation from the recognition of gain on the distribution of property to its shareholders on liquidation, Bliss reported no income on the transaction. The shareholders continued to operate the dairy business in noncorporate form. They filed an election under § 333 to limit the gain recognized by them on the liquidation, and they therefore calculated their basis in the assets received in the distribution as pro-' vided in § 334(c). Under that provision, their basis in the assets was their basis in their stock in the liquidated corporation, decreased by the amount of money received, and increased by the amount of gain recognized on the transaction. They then allocated that total basis over the assets, as provided in the regulations, Treas. Reg. §1.334-2, 26 CFR § 1.334-2 (1982), presumably taking a basis greater than zero in the feed, although the amount of the shareholders’ basis is not in the record. They in turn deducted their basis in the feed as an expense of doing business under § 162. On audit, the Commissioner challenged the corporation’s treatment of the transaction, asserting that Bliss should have taken into income the value of the grain distributed to the shareholders. He therefore increased Bliss’ income by $60,000. Bliss paid the resulting assessment and sued for a refund in the District Court for the District of Arizona, where it was stipulated that the grain had a value of $56,565, see Pretrial Order, at 3. Relying on Commissioner v. South Lake Farms, Inc., 324 F. 2d 837 (CA9 1963), the District Court rendered a judgment in favor of Bliss. While recognizing authority to the contrary, Tennessee-Carolina Transportation, Inc. v. Commissioner, 582 F. 2d 378 (CA6 1978), cert. denied, 440 U. S. 909 (1979), the Court of Appeals saw South Lake Farms as controlling and affirmed. 645 F. 2d 19 (CA9 1981) (per curiam).
“If—
“(1) property was acquired by a shareholder in the liquidation of a corporation in cancellation or redemption of stock, and
“(2) with respect to such acquisition—
“(A) gain was realized, but
“(B) as the result of an election made by the shareholder under section 333, the extent to which gain was recognized was determined under section 333,
“then the basis shall be the same as the basis of such stock cancelled or redeemed in the liquidation, decreased in the amount of any money received by the shareholder, and increased in the amount of gain recognized to him.”
The Government in each case relies solely on the tax benefit rule — a judicially developed principle that allays some of the inflexibilities of the annual accounting system. An annual accounting system is a practical necessity if the federal income tax is to produce revenue ascertainable and payable at regular intervals. Burnet v. Sanford & Brooks Co., 282 U. S. 359, 365 (1931). Nevertheless, strict adherence to an annual accounting system would create transactional inequities. Often an apparently completed transaction will reopen unexpectedly in a subsequent tax year, rendering the initial reporting improper. For instance, if a taxpayer held a note that became apparently uncollectible early in the taxable year, but the debtor made an unexpected financial recovery before the close of the year and paid the debt, the transaction would have no tax consequences for the taxpayer, for the repayment of the principal would be recovery of capital. If, however, the debtor’s financial recovery and the resulting repayment took place after the close of the taxable year, the taxpayer would have a deduction for the apparently bad debt in the first year under § 166(a) of the Code, 26 U. S. C. § 166(a). Without the tax benefit rule, the repayment in the second year, representing a return of capital, would not be taxable. The second transaction, then, although economically identical to the first, could, because of the differences in accounting, yield drastically different tax consequences. The Government, by allowing a deduction that it could not have known to be improper at the time, would be foreclosed from recouping any of the tax saved because of the improper deduction. Recognizing and seeking to avoid the possible distortions of income, the courts have long required the taxpayer to recognize the repayment in the second year as income. See, e. g., Estate of Block v. Commissioner, 39 B. T. A. 338 (1939), aff’d sub nom. Union Trust Co. v. Commissioner, 111 F. 2d 60 (CA7), cert. denied, 311 U. S. 658 (1940); South Dakota Concrete Products Co. v. Commis sioner, 26 B. T. A. 1429 (1932); Plumb, The Tax Benefit Rule Today, 57 Harv. L. Rev., 129, 176, 178, and n. 172 (1943) (hereinafter Plumb).
The taxpayers and the Government in these eases propose different formulations of the tax benefit rule. The taxpayers contend that the rule requires the inclusion of amounts recovered in later years, and they do not view the events in these cases as “recoveries.” The Government, on the other hand, urges that the tax benefit rule requires the inclusion of amounts previously deducted if later events are inconsistent with the deductions; it insists that no “recovery” is necessary to the application of the rule. Further, it asserts that the events in these cases are inconsistent with the deductions taken by the taxpayers. We are not in complete agreement with either view.
An examination of the purpose and accepted applications of the tax benefit rule reveals that a “recovery” will not always be necessary to invoke the tax benefit rule. The purpose of the rule is not simply to tax “recoveries.” On the contrary, it is to approximate the results produced by a tax system based on transactional rather than annual accounting. See generally Bittker & Kanner 270; Byrne, The Tax Benefit Rule as Applied to Corporate Liquidations and Contributions to Capital: Recent Developments, 56 Notre Dame Law. 215, 221, 232, (1980); Tye, The Tax Benefit Doctrine Reexamined, 3 Tax L. Rev. 329 (1948) (hereinafter Tye). It has long been accepted that a taxpayer using accrual accounting who accrues and deducts an expense in a tax year before it becomes payable and who for some reason eventually does not have to pay the liability must then take into income the amount of the expense earlier deducted. See, e. g., Mayfair Minerals, Inc. v. Commissioner, 456 F. 2d 622 (CA5 1972) (per curiam); Bear Manufacturing Co. v. United States, 430 F. 2d 152 (CA7 1970), cert. denied, 400 U. S. 1021 (1971); Haynsworth v. Commissioner, 68 T. C. 703 (1977), affirmance order, 609 F. 2d 1007 (CA5 1979); G. M. Standifer Construction Corp. v. Commissioner, 30 B. T. A. 184, 186-187 (1934), petition for review dism’d, 78 F. 2d 285 (CA9 1935). The bookkeeping entry canceling the liability, though it increases the balance sheet net worth of the taxpayer, does not fit within any ordinary definition of “recovery.” Thus, the taxpayers’ formulation of the rule neither serves the purposes of the rule nor accurately reflects the cases that establish the rule. Further, the taxpayers’ proposal would introduce an undesirable formalism into the application of the tax benefit rule. Lower courts have been able to stretch the definition of “recovery” to include a great variety of events. For instance, in cases of corporate liquidations, courts have viewed the corporation’s receipt of its own stock as a “recovery,” reasoning that, even though the instant that the corporation receives the stock it becomes worthless, the stock has value as it is turned over to the corporation, and that ephemeral value represents a recovery for the corporation. See, e. g., Tennessee-Carolina Transportation, Inc. v. Commissioner, 582 F. 2d, at 382 (alternative holding). Or, payment to another party may be imputed to the taxpayer, giving rise to a recovery. See First Trust and Savings Bank of Taylorville v. United States, 614 F. 2d, at 1146 (alternative holding). Imposition of a requirement that there be a recovery would, in many cases, simply require the Government to cast its argument in different and unnatural terminology, without adding anything to the analysis.
The basic purpose of the tax benefit rule is to achieve rough transactional parity in tax, see n. 12, supra, and to protect the Government and the taxpayer from the adverse effects of reporting a transaction on the basis of assumptions that an event in a subsequent year proves to have been erroneous. Such an event, unforeseen at the time of an earlier deduction, may in many cases require the application of the tax benefit rule. We do not, however, agree that this consequence invariably follows. Not every unforeseen event will require the taxpayer to report income in the amount of his earlier deduction. On the contrary, the tax benefit rule will “cancel out” an earlier deduction only when a careful examination shows that the later event is indeed fundamentally inconsistent with the premise on which the deduction was initially based. That is, if that event had occurred within the same taxable year, it would have foreclosed the deduction. In some cases, a subsequent recovery by the taxpayer will be the only event that would be fundamentally inconsistent with the provision granting the deduction. In such a case, only actual recovery by the taxpayer would justify application of the tax benefit rule. For example, if a calendar-year taxpayer made a rental payment on December 15 for a 30-day lease deductible in the current year under § 162(a)(3), see Treas. Reg. § 1.461-l(a)(l), 26 CFR § 1.461-l(a)(l) (1982); e. g., Zaninovich v. Commissioner, 616 F. 2d 429 (CA9 1980), the tax benefit rule would not require the recognition of income if the leased premises were destroyed by fire on January 10. The resulting inability of the taxpayer to occupy the building would be an event not fundamentally inconsistent with his prior deduction as an ordinary and necessary business expense under § 162(a). The loss is attributable to the business and therefore is consistent with the deduction of the rental payment as an ordinary and necessary business expense. On the other hand, had the premises not burned and, in January, the taxpayer decided to use them to house his family rather than to continue the operation of his business, he would have converted the leasehold to personal use. This would be an event fundamentally inconsistent with the business use on which the deduction was based. In the case of the fire, only if the lessor — by virtue of some provision in the lease — had refunded the rental payment would the taxpayer be required under the tax benefit rule to recognize income on the subsequent destruction of the building. In other words, the subsequent recovery of the previously deducted rental payment would be the only event inconsistent with the provision allowing the deduction. It therefore is evident that the tax benefit rule must be applied on a case-by-case basis. A court must consider the facts and circumstances of each case in the light of the purpose and function of the provisions granting the deductions.
When the later event takes place in the context of a nonrecognition provision of the Code, there will be an inherent tension between the tax benefit rule and the nonrecognition provision. See Putoma Corp. v. Commissioner, 601 F. 2d 734, 742 (CA5 1979); id., at 751 (Rubin, J., dissenting); cf. Helvering v. American Dental Co., 318 U. S. 322 (1943) (tension between exclusion of gifts from income and treatment of cancellation of indebtedness as income). We cannot resolve that tension with a blanket rule that the tax benefit rule will always prevail. Instead, we must focus on the particular provisions of the Code at issue in any case.
The formulation that we endorse today follows clearly from the long development of the tax benefit rule. Justice Stevens’ assertion that there is no suggestion in the early cases or from the early commentators that the rule could ever be applied in any case that did not involve a physical recovery, post, at 406-408, is incorrect. The early cases frequently framed the rule in terms consistent with our view and irreconcilable with that of the dissent. See Barnett v. Com missioner, 39 B. T. A. 864, 867 (1939) (“Finally, the present case is analogous to a number of others, where... [w]hen some event occurs which is inconsistent with a deduction taken in a prior year, adjustment may have to be made by reporting a balancing item in income for the year in which the change occurs”) (emphasis added); Estate of Block v. Commissioner, 39 B. T. A., at 341 (“When recovery or some other event which is inconsistent with what has been done in the past occurs, adjustment must be made in reporting income for the year in which the change occurs”) (emphasis added); South Dakota Concrete Products Co. v. Commissioner, 26 B. T. A., at 1432 (“[W]hen an adjustment occurs which is inconsistent with what has been done in the past in the determination of tax liability, the adjustment should be reflected in reporting income for the year in which it occurs”) (emphasis added). The reliance of the dissent on the early commentators is equally misplaced, for the articles cited in the dissent, like the early cases, often stated the rule in terms of inconsistent events.
Finally, Justice Stevens’ dissent relies heavily on the codification in § 111 of the exclusionary aspect of the tax benefit rule, which requires the taxpayer to include in income only the amount of the deduction that gave rise to a tax benefit, see n. 12, supra. That provision does, as the dissent observes, speak of a “recovery.” By its terms, it only applies to bad debts, taxes, and delinquency amounts. Yet this Court has held, Dobson v. Commissioner, 320 U. S. 489, 505-506 (1943), and it has always been accepted since, that § 111 does not limit the application of the exclusionary aspect of the tax benefit rule. On the contrary, it lists a few applications and represents a general endorsement of the exclusionary aspect of the tax benefit rule to other situations within the inclusionary part of the rule. The failure to mention inconsistent events in § 111 no more suggests that they do not trigger the application of the tax benefit rule than the failure to mention the recovery of a capital loss suggests that it does not, see Dobson, supra.
Justice Stevens also suggests that we err in recognizing transactional equity as the reason for the tax benefit rule. It is difficult to understand why even the clearest recovery should be taxed if not for the concern with transactional equity, see supra, at 377. Nor does the concern with transactional equity entail a change in our approach to the annual accounting system. Although the tax system relies basically on annual accounting, see Burnet v. Sanford & Brooks Co., 282 U. S., at 365, the tax benefit rule eliminates some of the distortions that would otherwise arise from such a system. See, e. g., Bittker & Kanner 268-270; Tye 350; Plumb 178, and n. 172. The limited nature of the rule and its effect on the annual accounting principle bears repetition: only if the occurrence of the event in the earlier year would have resulted in the disallowance of the deduction can the Commissioner require a compensating recognition of income when the event occurs in the later year.
Our approach today is consistent with our decision in Nash v. United States, 398 U. S. 1 (1970). There, we rejected the Government’s argument that the tax benefit rule required a taxpayer who incorporated a partnership under § 351 to include in income the amount of the bad debt reserve of the partnership. The Government’s theory was that, although § 351 provides that there will be no gain or loss on the transfer of assets to a controlled corporation in such a situation, the partnership had taken bad debt deductions to create the reserve, see § 166(c), and when the partnership terminated, it no longer needed the bad debt reserve. We noted that the receivables were transferred to the corporation along with the bad debt reserve. Id,., at 5, and n. 5. Not only was there no “recovery,” id., at 4, but there was no inconsistent event of any kind. That the fair market value of the receivables was equal to the face amount less the bad debt reserve, ibid., reflected that the reserve, and the deductions that constituted it, were still an accurate estimate of the debts that would ultimately prove uncollectible, and the deduction was therefore completely consistent with the later transfer of the receivables to the incorporated business. See Citizens’ Acceptance Corp. v. United States, 320 F. Supp. 798 (Del. 1971), rev’d on other grounds, 462 F. 2d 751 (CA3 1972); Rev. Rul. 78-279, 1978-2 Cum. Bull. 135; Rev. Rul. 78-278, 1978-2 Cum. Bull. 134; see generally O’Hare, Statutory Nonrecognition of Income and the Overriding Principle of the Tax Benefit Rule in the Taxation of Corporations and Shareholders, 27 Tax L. Rev. 215, 219-221 (1972).
In the cases currently before us, then, we must undertake an examination of the particular provisions of the Code that govern these transactions to determine whether the deductions taken by the taxpayers were actually inconsistent with later events and whether specific nonrecognition provisions prevail over the principle of the tax benefit rule.
I — I » — I
In Hillsboro, the key provision is § 164(e). That section grants the corporation a deduction for taxes imposed on its shareholders but paid by the corporation. It also denies the shareholders any deduction for the tax. In this case, the Commissioner has argued that the refund of the taxes by the State to the shareholders is the equivalent of the payment of a dividend from Hillsboro to its shareholders. If Hillsboro does not recognize income in the amount of the earlier deduction, it will have deducted a dividend. Since the general structure of the corporate tax provisions does not permit deduction of dividends, the Commissioner concludes that the payment to the shareholders must be inconsistent with the original deduction and therefore requires the inclusion of the amount of the taxes as income under the tax benefit rule.
In evaluating this argument, it is instructive to consider what the tax consequences of the payment of a shareholder tax by the corporation would be without § 164(e) and compare them to the consequences under § 164(e). Without § 164(e), the corporation would not be entitled to a deduction, for the tax is not imposed on it. See Treas. Reg. §1.164-l(a), 26 CFR §1.164-l(a) (1982); Wisconsin Gas & Electric Co. v. United States, 322 U. S. 526, 527-530 (1944). If the corporation has earnings and profits, the shareholder would have to recognize income in the amount of the taxes, because a payment by a corporation for the benefit of its shareholders is a constructive dividend. See §§ 301(c), 316(a); e. g., Ireland v. United States, 621 F. 2d 731, 735 (CA5 1980); B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders ¶7.05 (4th ed. 1979). The shareholder, however, would be entitled to a deduction since the constructive dividend is used to satisfy his tax liability. § 164(a)(2). Thus, for the shareholder, the transaction would be a wash: he would recognize the amount of the tax as income, but he would have an offsetting deduction for the tax. For the corporation, there would be no tax consequences, for the payment of a dividend gives rise to neither income nor a deduction. 26 U. S. C. §311(a) (1976 ed., Supp. V).
Under § 164(e), the economics of the transaction of course remain unchanged: the corporation is still satisfying a liability of the shareholder and is therefore paying a constructive dividend. The tax consequences are, however, significantly different, at least for the corporation. The transaction is still a wash for the shareholder; although § 164(e) denies him the deduction to which he would otherwise be entitled, he need not recognize income on the constructive dividend, Treas. Reg. § 1.164-7, 26 CFR § 1.164-7 (1982). But the corporation is entitled to a deduction that would not otherwise be available. In other words, the only effect of § 164(e) is to permit the corporation to deduct a dividend. Thus, we cannot agree with the Commissioner that, simply because the events here give rise to a deductible dividend, they cannot be consistent with the deduction. In at least some circumstances, a deductible dividend is within the contemplation of the Code. The question we must answer is whether § 164(e) permits a deductible dividend in these circumstances — when the money, though initially paid into the state treasury, ultimately reaches the shareholder — or whether the deductible dividend is available, as the Commissioner urges, only when the money remains in the state treasury, as properly assessed and collected tax revenue.
Rephrased, our question now is whether Congress, in granting this special favor to corporations that paid dividends by satisfying the liability of their shareholders, was concerned with the reason the money was paid out by the corporation or with the use to which it was ultimately put. Since § 164(e) represents a break with the usual rules governing corporate distributions, the structure of the Code does not provide any guidance on the reach of the provision. This Court has described the provision as “prompted by the plight of various banking corporations which paid and voluntarily absorbed the burden of certain local taxes imposed upon their shareholders, but were not permitted to deduct those payments from gross income.” Wisconsin Gas & Electric Co. v. United States, supra, at 531 (footnote omitted). The section, in substantially similar form, has been part of the Code since the Revenue Act of 1921, 42 Stat. 227. The provision was added by the Senate, but its Committee Report merely mentions the deduction without discussing it, see S. Rep. No. 275, 67th Cong., 1st Sess., 19 (1921). The only discussion of the provision appears to be that between Dr. T. S. Adams and Senator Smoot at the Senate hearings. Dr. Adams’ statement explains why the States imposed the property tax on the shareholders and collected it from the banks, but it does not cast much light on the reason for the deduction. Hearings on H. R. 8245 before the Committee on Finance, 67th Cong., 1st Sess., 250-251 (1921) (statement of Dr. T. S. Adams, tax advisor, Treasury Department). Senator Smoot’s response, however, is more revealing:
“I have been a director in a bank... for over 20 years. They have paid that tax ever since I have owned a share of stock in the bank.... I know nothing about it. I do not take 1 cent of credit for deductions, and the banks are entitled to it. They pay it out.” Id., at 251 (emphasis added).
The payment by the corporations of a liability that Congress knew was not a tax imposed on them gave rise to the entitlement to a deduction; Congress was unconcerned that the corporations took a deduction for amounts that did not satisfy their tax liability. It apparently perceived the shareholders and the corporations as independent of one another, each “know[ing] nothing about” the payments by the other. In those circumstances, it is difficult to conclude that Congress intended that the corporation have no deduction if the State turned the tax revenues over to these independent parties. We conclude that the purpose of § 164(e) was to provide relief for corporations making these payments, and the focus of Congress was on the act of payment rather than on the ultimate use of the funds by the State. As long as the payment itself was not negated by a refund to the corporation, the change in character of the funds in the hands of the State does not require the corporation to recognize income, and we reverse the judgment below.
I — I
The problem in Bliss is more complicated. Bliss took a deduction under § 162(a), so we must begin by examining that provision. Section 162(a) permits a deduction for the “ordinary and necessary expenses” of carrying on a trade or business. The deduction is predicated on the consumption of the asset in the trade or business. See Treas. Reg. § 1.162-3, 26 CFR §1.162-3 (1982) (“Taxpayers... should include in expenses the charges for materials and supplies only in the amount that they are actually consumed and used in operation in the taxable year...”) (emphasis added). If the taxpayer later sells the asset rather than consuming it in furtherance of his trade or business, it is quite clear that he would lose his deduction, for the basis of the asset would be zero, see, e. g., Spitalny v. United States, 430 F. 2d 195 (CA9 1970), so he would recognize the full amount of the proceeds on sale as gain. See §§ 1001(a), (c). In general, if the taxpayer converts the expensed asset to some other, non-business use, that action is inconsistent with his earlier deduction, and the tax benefit rule would require inclusion in income of the amount of the unwarranted deduction. That nonbusiness use is inconsistent with a deduction for an ordinary and necessary business expense is clear from an examination of the Code. While § 162(a) permits a deduction for ordinary and necessary business expenses, §262 explicitly denies a deduction for personal expenses. In the 1916 Act, the two provisions were a single section. See §5(a)(First), 39 Stat. 756. The provision has been uniformly interpreted as providing a deduction only for those expenses attributable to the business of the taxpayer. See, e. g., Kornhauser v. United States, 276 U. S. 145 (1928); Hearings on Proposed Revision of Revenue Laws before the Subcommittee of the House Committee on Ways and Means, 75th Cong., 3d Sess., 54 (1938) (“a taxpayer should be granted a reasonable deduction for the direct expenses he has incurred in connection with his income”) (emphasis added); see generally, 1 Bittker, supra n. 9, ¶20.2. Thus, if a corporation turns expensed assets to the analog of personal consumption, as Bliss did here — distribution to shareholders — it would seem that it should take into income the amount of the earlier deduction.
That conclusion, however, does not resolve this case, for the distribution by Bliss to its shareholders is governed by a provision of the Code that specifically shields the taxpayer from recognition of gain — § 336. We must therefore proceed to inquire whether this is the sort of gain that goes unrecognized under § 336. Our examination of the background of § 336 and its place within the framework of tax law convinces us that it does not prevent the application of the tax benefit rule.
Section 336 was enacted as part of the 1954 Code. It codified the doctrine of General Utilities Co. v. Helvering, 296 U. S. 200, 206 (1935), that a corporation does not recognize gain on the distribution of appreciated property to its shareholders. Before the enactment of the statutory provision, the rule was expressed in the regulations, which provided that the corporation would not recognize gain or loss, “however [the assets] may have appreciated or depreciated in value since their acquisition.” Treas. Regs. 118, § 39.22(a)-20 (1953) (emphasis added). The Senate Report recognized this regulation as the source of the new §336, S. Rep. No. 1622, 83d Cong., 2d Sess., 258 (1954). The House Report explained its version of the provision: “Thus, the fact that the property distributed has appreciated or depreciated in value over its adjusted basis to the distributing corporation will in no way alter the application of subsection (a) [providing nonrecognition].” H. R. Rep. No. 1337, 83d Cong., 2d Sess., A90 (1954) (emphasis added). This background indicates that the real concern of the provision is to prevent recognition of market appreciation that has not been realized by an arm’s-length transfer to an unrelated party rather than to shield all types of income that might arise from the disposition of an asset.
Despite the breadth of the nonrecognition language in § 336, the rule of nonrecognition clearly is not without exception. For instance, § 336 does not bar the recapture under § 1245 and § 1250 of excessive depreciation taken on distributed assets. §§ 1245(a), 1250(a); Treas. Reg. §§ 1.1245-6(b), 1.1250-l(c)(2), 26 CFR §§ 1.1245-6(b), 1.1250-l(c)(2) (1982). Even in the absence of countervailing statutory provisions, courts have never read the command of nonrecognition in § 336 as absolute. The “assignment of income” doctrine has always applied to distributions in liquidation. See, e. g., Siegel v. United States, 464 F. 2d 891 (CA9 1972), cert. dism’d, 410 U. S. 918 (1973); Williamson v. United States, 155 Ct. Cl. 279, 292 F. 2d 524 (1961); see also Idaho First National Bank v. United States, 265 F. 2d 6 (CA9 1959) (decided before General Utilities codified in §336). That judicial doctrine prevents taxpayers from avoiding taxation by shifting income from the person or entity that earns it to someone who pays taxes at a lower rate. Since income recognized by the corporation is subject to the corporate tax and is again taxed at the individual level upon distribution to the shareholder, shifting of income from a corporation to a shareholder can be particularly attractive: it eliminates one level of taxation. Responding to that incentive, corporations have attempted to distribute to shareholders fully performed contracts or accounts receivable and then to invoke § 336 to avoid taxation on the income. In spite of the language of nonrecognition, the courts have applied the assignment-of-income doctrine and required the corporation to recognize the income. Section 336, then, clearly does not shield the taxpayer from recognition of all income on the distribution
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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sc_issue_9
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11
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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.
GULF OIL CO. et al. v. BERNARD et al.
No. 80-441.
Argued March 30, 1981
Decided June 1, 1981
Powell, J., delivered the opinion for a unanimous Court.
Wm. G. Duck argued the cause for petitioners. With him on the briefs were Susan B. Sewell and Carl A. Parker.
Jack Greenberg argued the cause for respondents. With him on the brief were Bill Lann Lee, Barry L. Goldstein, and Ulysses Gene Thibodeaux.
Deputy Solicitor General Wallace argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General McCree, Acting Assistant Attorney General Turner, Harlon L. Dalton, Jessica Dunsay Silver, Carol E. Heckman, and Leroy D. Clark.
Stuart Rothman and George C. Smith filed a brief for Hudson Pulp and Paper Corp. as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Arthur B. Spitzer and Kenneth J. Guido, Jr., for the American Civil Liberties Union Fund of the National Capital Area et al.; by Mayo L. Coiner and Harry M. Philo for the Association of Trial Lawyers of America; by Richard F. Watt and Martha A. Milk for the Chicago Council of Lawyers; and by William F. Kaspers and John D. Buchanan, Jr., for the Tallahassee Memorial Hospital.
Justice Powell
delivered the opinion of the Court.
This is a class action involving allegations of racial discrimination in employment on the part of petitioners, the Gulf Oil Co. (Gulf) and one of the unions at its Port Arthur, Tex., refinery. We granted a writ of certiorari to determine the scope of a district court’s authority to limit communications from named plaintiffs and their counsel to prospective class members, during the pendency of a class action. We hold that in the circumstances of this case the District Court exceeded its authority under the Federal Rules of Civil Procedure.
I
In April 1976, Gulf and the Equal Employment Opportunity Commission (EEOC) entered into a conciliation agreement involving alleged discrimination against black and female employees at the Port Arthur refinery. Gulf agreed to cease various allegedly discriminatory practices, to undertake an affirmative-action program covering hiring and promotion, and to offer backpay to alleged victims of discrimination based on a set formula. Gulf began to send notices to the 643 employees eligible for backpay, stating the exact amount available to each person in return for execution within 30 days of a full release of all discrimination claims dating from the relevant time period.
Approximately one month after the signing of the conciliation agreement, on May 18, 1976, respondents filed this class action in the United States District Court for the Eastern District of Texas, on behalf of all black present and former employees, and rejected applicants for employment, at the refinery. They alleged racial discrimination in employment and sought injunctive, declaratory, and monetary relief, based on Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U. S. C. § 1981. The defendants named were Gulf and Local 4-23 of the Oil, Chemical, and Atomic Workers International Union. Plaintiffs’ counsel included three lawyers from the NAACP Legal Defense and Education Fund. Through this lawsuit, the named plaintiffs sought to vindicate the alleged rights of many of the employees who were receiving settlement offers from Gulf under the conciliation agreement.
On May 27, Gulf filed a motion in the District Court seeking an order limiting communications by parties and their counsel with class members. An accompanying brief described the EEOC conciliation agreement, asserting that 452 of the 643 employees entitled to backpay under that agreement had signed releases and been paid by the time the class action was filed. Gulf stated that after it was served in the case, it ceased sending backpay offers and release forms to class members. It then asserted that a lawyer for respondents, Ulysses Gene Thibodeaux, had attended a meeting of 75 class members on May 22, where he had discussed the case and recommended that the employees not sign the releases sent under the conciliation agreement. Gulf added that Thibodeaux reportedly had advised employees to return checks they already had received, since they could receive at least double the amounts involved through the class action.
The court entered a temporary order prohibiting all communications concerning the case from parties or their counsel to potential or actual class members. The order listed several examples of communications that were covered, but stated that it was not limited to these examples. It was not based on any findings of fact.
On June 8, Gulf moved for a modification of the order that would allow it to continue mailings to class members, soliciting releases in exchange for the backpay amounts established under the conciliation agreement. Respondents filed a brief in opposition, arguing that the ban on their communications with class members violated the First Amendment. On June 11, the court heard oral argument, but took no evidence. Gulf then filed a supplemental memorandum proposing that the court adopt the language of "Sample Pretrial Order No. 15” in the Manual for Complex Litigation App. § 1.41. Respondents replied with another memorandum, accompanied by sworn affidavits of three lawyers. In these affidavits counsel stated that communications with class members were important in order to obtain needed information about the case and to inform the class members of their rights. Two affidavits stated that lawyers had attended the May 22 meeting with employees and discussed the issues in the case but neither advised against accepting the Gulf offer nor represented that the suit would produce twice the amount of backpay available through the conciliation agreement.
On June 22, another District Judge issued a modified order adopting Gulf’s proposal. This order imposed a complete ban on all communications concerning the class action between parties or their counsel and any actual or potential class member who was not a formal party, without the prior approval of the court. It gave examples of forbidden communications, including any solicitation of legal representation of potential or actual class members, and any statements “which may tend to misrepresent the status, purposes and effects of the class action” or “create impressions tending without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice.” The order exempted attorney-client communications initiated by the client, and communications in the regular course of business. It further stated that if any party or counsel “assert [ed] a constitutional right to communicate . . . without prior restraint,” and did so communicate, he should file with the court a copy or summary of the communication within five days. The order, finally, exempted communications from Gulf involving the conciliation agreement and its settlement process.
The court made no findings of fact and did not write an explanatory opinion. The only justification offered was a statement in the final paragraph of the order:
“It is Plaintiff’s [sic] contention that any such provisions as hereinbefore stated that limit communication with potential class members are constitutionally invalid, citing Rodgers v. United States Steel Corporation, 508 F. 2d 152 (3rd Cir. 1975), cert. denied, 420 U. S. 969 (1975). This Court finds that the Rodgers case is inapplicable, and that this order comports with the requisites set out in the Manual for Complex Litigation . . . which specifically exempts constitutionally protected communication when the substance of such communication is filed with the Court.”
On July 6, pursuant to the court’s order respondents submitted for court approval a proposed leaflet to be sent to the class members. This notice urged the class to talk to a lawyer before signing the releases sent by Gulf. It contained the names and addresses of respondents’ counsel and referred to this case. Respondents argued that the notice was constitutionally protected and necessary to the conduct of the lawsuit. Gulf opposed the motion. The court waited until August 10 to rule on this motion. On that date, 2 days after the expiration of the 45-day deadline established by the court for acceptance of the Gulf offer by class members, the court denied the motion in a one-sentence order containing no explanation. As a result, the named plaintiffs and their counsel were prevented from undertaking any communication with the class members prior to the deadline.
On appeal from a subsequent final order, respondents argued that the limitations on communications imposed by the District Court were beyond the power granted the court in Federal Rule of Civil Procedure 23 (d) and were unconstitutional under the First Amendment. A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed the District Court. 596 F. 2d 1249 (1979).
The panel majority reasoned that orders limiting communications are within the extensive powers of district courts in managing class litigation. It held that the District Court could easily have concluded that the need to limit communications outweighed any competing interests of respondents, especially since the order merely required prior approval of communications, rather than prohibiting them altogether. Id., at 1259-1261. Turning to respondents’ First Amendment argument, the majority held that the order was not a prior restraint because it exempted unapproved communications whenever the parties or their counsel asserted a constitutional privilege in good faith. The court also found no serious “chill” of protected speech. Id., at 1261-1262.
Judge Godbold wrote a dissenting opinion arguing that the order limiting communications was not “appropriate” within the meaning of Federal Rule of Civil Procedure 23 (d) because the court did not make any finding of actual or imminent abuse. He reasoned that Gulf’s unsworn allegations of misconduct could not justify this order, and that a court could not impose such a limitation routinely in all class actions. Id., at 1267-1268. He added that it was improper in this context for the District Court to encourage compliance with the conciliation agreement through such an order. Id., at 1269-1270. Judge Godbold also found that the order violated respondents’ First Amendment rights. Id., at 1270-1275.
The Fifth Circuit granted a rehearing en banc, and reversed the panel decision concerning the order limiting communications. 619 F. 2d 459 (1980). A majority opinion joined by 13 judges held that the order was an unconstitutional prior restraint on expression accorded First Amendment protection. The court held that there was no sufficient particularized showing of need to justify such a restraint, that the restraint was overbroad, and that it was not accompanied by the requisite procedural safeguards. Id., at 466^478. Eight judges concurred specially on the theory that it was unnecessary to reach constitutional issues because the order was not based on adequate findings and therefore was not “appropriate” under Federal Rule of Civil Procedure 23 (d). Id., at 478, 481. One judge would have affirmed the District Court.
We granted a writ of certiorari to review the question whether the order limiting communications was constitutionally permissible. 449 U. S. 1033 (1980).
II
Rule 23 (d) of the Federal Rules of Civil Procedure provides: “(d) ORDERS IN CONDUCT OF ACTIONS. In the conduct of actions to which this rule applies, the court may make appropriate orders: ... (3) imposing conditions on the representative parties or on intervenors . . . [and] (5) dealing with similar procedural matters.” As the concurring judges below recognized, 619 F. 2d, at 478, 481, prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision. See Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandéis, J., concurring). As a result, in this case we first consider the authority of district courts under the Federal Rules to impose sweeping limitations on communications by named plaintiffs and their counsel to prospective class members.
More specifically, the question for decision is whether the limiting order entered in this case is consistent with the general policies embodied in Rule 23, which governs class actions in federal court. Class actions serve an important function in our system of civil justice. They present, however, opportunities for abuse as well as problems for courts and counsel in the management of cases. Because of the potential for abuse, a district court has' both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties. But this discretion is not unlimited, and indeed is bounded by the relevant provisions of the Federal Rules. Eisen v. Carlisle & Jacquelin, 417 U. S. 156 (1974). Moreover, petitioners concede, as they must, that exercises of this discretion are subject to appellate review. Brief for Petitioners 21, n. 15; see Eisen, supra; Oppenheimer Fund, Inc. v. Sanders, 437 U. S. 340, 359 (1978).
In the present case, we are faced with the unquestionable assertion by respondents that the order created at least potential difficulties for them as they sought to vindicate the legal rights of a class of employees. The order interfered with their efforts to inform potential class members of the existence of this lawsuit, and may have been particularly injurious — not only to respondents but to the class as a whole — because the employees at that time were being pressed to decide whether to accept a backpay offer from Gulf that required them to sign a full release of all liability for discriminatory acts. In addition, the order made it more difficult for respondents, as the class representatives, to obtain information about the merits of the case from the persons they sought to represent.
Because of these potential problems, an order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties. Only such a determination can ensure that the court is furthering, rather than hindering, the policies embodied in the Federal Rules of Civil Procedure, especially Rule 23. In addition, such a weighing — identifying the potential abuses being addressed— should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances. As the court stated in Coles v. Marsh, 560 F. 2d 186, 189 (CA3), cert. denied, 434 U. S. 985 (1977):
“[T]o the extent that the district court is empowered . . . to restrict certain communications in order to prevent frustration of the policies of Rule 23, it may not exercise the power without a specific record showing by the moving party of the particular abuses by which it is threatened. Moreover, the district court must find that the showing provides a satisfactory basis for relief and that the relief sought would be consistent with the policies of Rule 23 giving explicit consideration to the narrowest possible relief which would protect the respective parties.”
Ill
In the present case, one looks in vain for any indication of a careful weighing of competing factors. Indeed, in this respect, the District Court failed to provide any record useful for appellate review. The court made neither factual findings nor legal arguments supporting the need for this sweeping restraint order. Instead, the court adopted in toto the order suggested by the Manual for Complex Litigation — on the apparent assumption that no particularized weighing of the circumstances of the case was necessary.
The result was an order requiring prior judicial approval of all communications, with the exception of cases where respondents chose to assert a constitutional right. Even then, respondents were required to preserve all communications for submission to the court within five days. The scope of this order is perhaps best illustrated by the fact that the court refused to permit mailing of the one notice respondents submitted for approval. See supra, at 96-97. This notice was intended to encourage employees to rely on the class action for relief, rather than accepting Gulfs offer. The court identified nothing in this notice that it thought was improper and indeed gave no reasons for its negative ruling.
We conclude that the imposition of the order was an abuse of discretion. The record reveals no grounds on which the District Court could have determined that it was necessary or appropriate to impose this order. Although we do not decide what standards are mandated by the First Amendment in this kind of case, we do observe that the order involved serious restraints on expression. This fact, at minimum, counsels caution on the part of a district court in drafting such an order, and attention to whether the restraint is justified by a likelihood of serious abuses.
We recognize the possibility of abuses in class-action litigation, and agree with petitioners that such abuses may implicate communications with potential class members. But the mere possibility of abuses does not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action in accordance with the Rules. There certainly is no justification for adopting verbatim the form of order recommended by the Manual for Complex Litigation, in the absence of a clear record and specific findings of need. Other, less burdensome remedies may be appropriate. Indeed, in many cases there will be no problem requiring remedies at all.
In the present case, for the reasons stated above, we hold that the District Court abused its discretion. Accordingly, the judgment below is affirmed.
It is so ordered.
The letter stated that “[b]ecause this offer is personal in nature, Gulf asks that you not discuss it with others.” It added, however, that those who did not understand the offer could request that a company official arrange an interview with a Government representative. Brief for United States et al. as Amici Curiae la.
Three of the named plaintiffs, Bernard, Brown, and Johnson, had filed individual charges before the EEOC in 1967. The Commission pursued conciliation efforts based on these charges until February 1975 when these three persons received letters stating that Gulf and the union no longer wished to entertain conciliation discussions. The letters stated that the three could request “right to sue” letters at any time, and'would have 90 days from the receipt of such letters to file suit under Title VII. Bernard and Brown received notices of right to sue from the Commission on June 11, 1976.
The conciliation agreement between Gulf and the EEOC was premised on a separate charge filed against Gulf by the Commission itself in 1968.
Two other attorneys also assisted in the representation.
The Manual, containing an important compilation of suggested procedures for handling complex federal cases, was published under the supervision of a distinguished group of federal judges. It is printed in full in Part 2 of 1 J. Moore, J. Lucas, H. Fink, D. Weckstein, & J. Wicker, Moore’s Federal Practice (1980).
In its proposed order, Gulf added language allowing it to continue paying backpay and obtaining releases under the conciliation agreement. It suggested that the Clerk of the Court should send a notice to class members informing them that they had 45 days in which to decide to accept the Gulf offer.
The June 22 order stated, in part:
“In this action, all parties hereto and their counsel are forbidden directly or indirectly, orally or in writing, to communicate concerning such action with any potential or actual class member not a formal party to the action without the consent and approval of the proposed communication and proposed addresses by order of this Court. Any such proposed communication shall be presented to this Court in writing with a designation of or description of all addressees and with a motion and proposed order for prior approval by this Court of the proposed communication. The communications forbidden by this order include, but are not limited to, (a) solicitation directly or indirectly of legal representation of potential and actual class members who are not formal parties to the class action; (b) solicitation of fees and expenses and agreements to pay fees and expenses from potential and actual class members who are not formal parties to the class action; (c) solicitation by formal parties to the class action of requests by class members to opt out in class actions under subparagraph (b)(3) of Rule 23, F. R. Civ. P.; and (d) communications from eoun-' sel or a party which may tend to misrepresent the status, purposes and effects of the class action, and of any actual or potential Court orders therein which may create impressions tending, without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice. The obligations and prohibitions of this order are not exclusive. All other ethical, legal and equitable obligations are unaffected by this order.
“This order does not forbid (1) communications between an attorney and his client or a prospective client, who has on the initiative of the client or prospective client consulted with, employed or proposed to employ the attorney, or (2) communications occurring in the regular course of business or in the performance of the duties of public oiflce or agency (such as the Attorney General) which do not have the effect of soliciting representation by counsel, or misrepresenting the status, purposes or effect of the action and orders therein.
“If any party or counsel for a party asserts a constitutional right to communicate with any member of the class without prior restraint and does so communicate pursuant to that asserted right, he shall within five days after such communication file with the Court a copy of such communication, if in writing, or an accurate and substantially complete summary of the communication if oral.”
This section of the order was drawn word-for-word from the Manual for Complex Litigation App. § 1.41. The order then went on to authorize Gulf to continue with the settlement process under the terms of the conciliation agreement, and to direct the Clerk of Court to send the notice described in n. 4, supra. A paragraph near the end of the order then reiterated the proscription on communications:
“(8) [It is ordered that] any further communication, either direct or indirect, oral or in writing (other than those permitted pursuant to paragraph (2) above) from the named parties, their representatives or counsel to the potential or actual class members not formal parties to this action is forbidden.”
The proposed notice stated:
“ATTENTION BLACK WORKERS OF GULF OIL
“The Company has asked you to sign a release. If you do, you may be giving up very important civil rights. It is important that you fully understand what you are getting in return for the release. IT IS IMPORTANT THAT YOU TALK TO A LAWYER BEFORE YOU SIGN. These lawyers will talk to you FOR FREE: [names and addresses of respondents’ counsel],
“These lawyers represent six of your fellow workers in a lawsuit titled Bernard v. Gvlf Oil Co., which was filed in Beaumont Federal Court on behalf of all of you. This suit seeks to correct fully the alleged discriminatory practices of Gulf.
“Even if you have already signed the release, talk to a lawyer. You may consult another attorney. If necessary, have him contact the above-named lawyers for more details. All discussions will be kept strictly confidential.
“AGAIN, IT IS IMPORTANT THAT YOU TALK TO A LAWYER. Whatever your decision might be, we will continue to vigorously prosecute this lawsuit in order to correct all the alleged discriminatory practices at Gulf Oil.”
This order had effected a substantial change in the procedure mandated by the conciliation agreement, which provided that “failure on the part of any member to respond within thirty days shall be interpreted as acceptance of back pay” (emphasis added). App. 59.
On January 11, 1977, the District Court granted summary judgment to petitioners, dismissing the complaint as untimely. On appeal, respondents argued that their claims had been presented in timely fashion. Both the Fifth Circuit panel, 596 F. 2d 1249, 1254H258 (1979), and the en banc court, 619 F. 2d 459, 463 (1980), held for respondents on this issue and therefore ordered a remand for further proceedings.
In holding that the order restricted protected speech, the court relied both on cases involving essentially political litigation, NAACP v. Button, 371 U. S. 415 (1963); In re Primus, 436 U. S. 412 (1978), and on cases that may be closer to the present case, involving collective efforts to gain economic benefits accorded a specific group of persons under federal law, United Transportation Union v. Michigan Bar, 401 U. S. 576 (1971); Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967); Railroad Trainmen v. Virginia State Bar, 377 U. S. 1 (1964).
Rule 83 provides a more general authorization to district courts, stating that in “all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.”
Respondents in this case were performing the customary role of named plaintiffs, who seek to “vindieatfe] the rights of individuals who otherwise might not consider it worth the candle to embark on litigation in which the optimum result might be more than consumed by the cost.” Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 338 (1980). Rule 23 expresses “a policy in favor of having litigation in which common interests, or common questions of law or fact prevail, disposed of where feasible in a single lawsuit.” Rodgers v. United States Steel Corp., 508 F. 2d 152, 163 (CA3), cert. denied, 423 U. S. 832 (1975).
Although traditional concerns about “stirring up” litigation remain relevant in the class-action context, see n. 12, infra, such concerns were particularly misplaced here. Respondents were represented by lawyers from the NAACP Legal Defense and Education Fund — a nonprofit organization dedicated to the vindication of the legal rights of blacks and other citizens. See In re Primus, supra, at 422, 426-431 (distinguishing, with respect to First Amendment protections, between solicitation of clients intended to advance political objectives and solicitation of clients for pecuniary gain).
The class-action problems that have emerged since Rule 23 took its present form in 1966 have provoked a considerable amount of comment and discussion. See, e. g., Manual for Complex Litigation; Developments in the Law: Class Actions, 89 Harv. L. Rev. 1318 (1976); Miller, Problems of Administering Judicial Relief in Class Actions under Federal Rule 23 (b) (3), 54 F. R. D. 501 (1972).-
The potential abuses associated with communications to class members are described in Waldo v. Lakeshore Estates, Inc., 433 F. Supp. 782 (ED La. 1977). That court referred, inter alia, to the “heightened susceptibilities of nonparty class members to solicitation amounting to barratry as well as the increased opportunities of the parties or counsel to 'drum up’ participation in the proceeding.” Id., at 790. The court added that “[ujnapproved communications to class members that misrepresent the status or effect of the pending action also have an obvious potential for confusion and/or adversely affecting the administration of justice.” Id., at 790-791. See also Manual for Complex Litigation App. § 1.41.
See generally Comment, Judicial Screening of Class Action Communications, 55 N. Y. U. L. Rev. 671, 699-704 (1980); Note, 88 Harv. L. Rev. 1911, 1917-1920 (1975).
In Title VII, Congress expressed a preference for voluntary settlements of disputes through the conciliation process. E. g., Alexander v. Gardner-Denver Co., 415 U. S. 36, 44 (1974). But, as the en banc majority stated, it is not appropriate to promote such a policy by restricting information relevant to the employee’s choice:
“The choice between the lawsuit and accepting Gulf’s back pay offer and giving a general release was for each black employee to make. The court could not make it for him, nor should it have freighted his choice with an across-the-board ban that restricted his access to information and advice concerning the choice.” 619 F. 2d, at 477.
As noted infra, we do not reach the question of what requirements the First Amendment may impose in this context. FuE consideration of the constitutional issue should await a case with a fully developed record concerning possible abuses of the class-action device.
Cf. In re Halkin, 194 U. S. App. D. C. 257, 274, 598 F. 2d 176, 193 (1979) (“To establish 'good cause’ for a protective order under [Federal Rule of Civil Procedure] 26 (c), '[t]he courts have insisted on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements’ ”) (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure §2035, p. 265 (1970)).
The order contains a serious ambiguity concerning the response that the court could make if it found no merit in respondents’ assertion of a constitutional right with respect to a particular communication. Arguably, this “constitutional” exception was not a realistic option for respondents because they could be exposed to the risk of a contempt citation if the court determined that a communication submitted after-the-fact was not constitutionally protected. See 619 F. 2d, at 471 (referring to “the omissions and ambiguities of the order and possible differing constructions as to when, if at all, one is protected against contempt”). At the very least, parties or their counsel would be required to defend their good faith, at the risk of a contempt citation. Because of this fact, and the practical difficulties of the filing requirement, see id., at 470-471, this exception for constitutionally protected speech did little to narrow the scope of the limitation on speech imposed by the court.
We agree with the Court of Appeals’ refusal to give weight to Gulf’s unsworn allegations of misconduct on the part of respondents’ attorneys: “We can assume that the district court did not ground its order on a conclusion that the charges of misconduct made by Gulf were true. Nothing in its order indicates that it did, and, if it did, such a conclusion would have been procedurally improper and without evidentiary support. Rather the court appears to have acted upon the rationale of the Manual that the court has the power to enter a ban on communications in any actual or potential class action as a prophylactic measure against potential abuses envisioned by the Manual.” Id., at 466' (footnote omitted).
See n. 12, supra.
For example, an order requiring parties to file copies of nonprivi-leged communications to class members with the court may be appropriate in some circumstances.
In the conduct of a case, a court often finds it necessary to restrict the free expression of participants, including counsel, witnesses, and jurors. Our decision regarding the need for careful analysis of the particular circumstances is limited to the situation before us — involving a broad restraint on communication with class members. We also note that the rules of ethics properly impose restraints on some forms of expression. See, e. g., ABA Code of Professional Responsibility, DR 7-104 (1980).
Question: What is the issue of the decision?
01. comity: civil rights
02. comity: criminal procedure
03. comity: First Amendment
04. comity: habeas corpus
05. comity: military
06. comity: obscenity
07. comity: privacy
08. comity: miscellaneous
09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals
10. assessment of costs or damages: as part of a court order
11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules
12. judicial review of administrative agency's or administrative official's actions and procedures
13. mootness (cf. standing to sue: live dispute)
14. venue
15. no merits: writ improvidently granted
16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit
17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals)
18. no merits: adequate non-federal grounds for decision
19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law)
20. no merits: miscellaneous
21. standing to sue: adversary parties
22. standing to sue: direct injury
23. standing to sue: legal injury
24. standing to sue: personal injury
25. standing to sue: justiciable question
26. standing to sue: live dispute
27. standing to sue: parens patriae standing
28. standing to sue: statutory standing
29. standing to sue: private or implied cause of action
30. standing to sue: taxpayer's suit
31. standing to sue: miscellaneous
32. judicial administration: jurisdiction or authority of federal district courts or territorial courts
33. judicial administration: jurisdiction or authority of federal courts of appeals
34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753)
35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court
36. judicial administration: jurisdiction or authority of the Court of Claims
37. judicial administration: Supreme Court's original jurisdiction
38. judicial administration: review of non-final order
39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision)
40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question)
41. judicial administration: ancillary or pendent jurisdiction
42. judicial administration: extraordinary relief (e.g., mandamus, injunction)
43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal)
44. judicial administration: resolution of circuit conflict, or conflict between or among other courts
45. judicial administration: objection to reason for denial of certiorari or appeal
46. judicial administration: collateral estoppel or res judicata
47. judicial administration: interpleader
48. judicial administration: untimely filing
49. judicial administration: Act of State doctrine
50. judicial administration: miscellaneous
51. Supreme Court's certiorari, writ of error, or appeals jurisdiction
52. miscellaneous judicial power, especially diversity jurisdiction
Answer:
|
songer_casetyp1_3-3-2
|
J
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "First Amendment - speech and other expression".
UNITED STATES of America v. Roman Stanislaw RYBA, Appellant.
No. 19249.
United States Court of Appeals, Third Circuit.
Argued Dec. 15, 1970.
Decided April 23, 1971.
Emil Oxfeld, Rothbard, Harris & Oxfeld, Newark, N. J., for appellant.
W. Hunt Dumont, Asst. U. S. Atty., Newark, N. J., Frederick B. Lacey, U. S. Atty., Newark, N. J., for appellee.
Before HASTIE, Chief Judge, and FREEDMAN and GIBBONS, Circuit Judges.
Judge Freedman heard argument and participated in the consideration of this appeal but died before decision.
OPINION OF THE COURT
HASTIE, Chief Judge.
The appellant, an alien and a selective service registrant, has been convicted of willful failure to report for induction into military service. His principal contention on this appeal is that he was improperly denied the right, given by statute to aliens other than those admitted for permanent residence, to elect whether he shall submit to or be relieved of the obligation of service in the armed forces.
Before 1951 this right was enjoyed by permanent resident aliens as well. Selective Service Act of 1948, ch. 625, § 4(a), 62 Stat. 605. But since that time a “male alien admitted for permanent residence,” no different from a male citizen, has been fully liable for training and service in the armed forces. 50 U.S.C. App. § 454. The government contends that the appellant is an “alien admitted for permanent residence.”
At the age of 14 the appellant, with his mother and sister, emigrated from his native Poland and entered the United States through regular immigration procedures. They joined his father, who had entered the country a year earlier, and took up residence as a family in Newark, New Jersey. There the appellant attended elementary school and high school. At the age of 18 he registered for selective service. As a then high school student he was classified 1-SH. After his graduation from high school and an unsuccessful effort to obtain a hardship deferment, he was classified 1-A, found physically qualified for induction and ordered to report for induction. He did not report. Subsequently he was arrested and charged with willful failure to report for induction.
After he had been indicted, the registrant for the first time informed his board that he sought relief as an alien entitled to elect whether he would be liable for military service. The board declined to reopen his case, thus refusing to recognize him as such an alien as the law permits to avoid military training and service.
The present record indicates, without any evidence or basis for implication to the contrary, that the 14-year-old appellant was admitted to this country with his mother as an immigrant privileged to remain permanently. In an effort to avoid this conclusion it is argued that as an infant he had made no effective choice of status. But that is beside the point. The law determines and specifies immigrant status objectively upon the basis of the circumstances and conditions of entry. Cf. United States v. Rumsa, 7th Cir. 1954, 212 F.2d 927, cert. denied, 348 U.S. 838, 75 S.Ct. 36, 99 L.Ed. 661. Thus it is provided by statute that “[t]he term ‘lawfully admitted for permanent residence’ means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” 8 U.S.C. § 1101 (a) (20).
The registrant’s selective service board had adequate basis for subjecting him to induction as an alien admitted for permanent residence, if only because at the time of registration he signed and filed with the board a questionnaire which specified that he was an alien admitted for permanent residence. And though it is contended that the clerk of the board assisted and guided him in filling out the questionnaire, nothing appears even now to indicate that the statement of his status at that time was incorrect.
Neither is there any evidence of a change of status. There is a prescribed statutory procedure by which certain aliens lawfully admitted for permanent residence can have their status “adjusted” by the Attorney General. 8 U.S.C. § 1257. But the registrant’s situation is not covered by that statute. Moreover, assuming that his status could be changed by some action of an agency charged with the administration of the immigration laws, no request for such alteration of status has been made. Rather, after having been indicted for failure to report for induction, the registrant sought relief from his selective service board as if that agency had power to change his immigrant status. In these circumstances the board properly refused to grant relief.
No other issue of substance is presented by this appeal.
The judgment will be affirmed.
. Any male alien between the ages of 18 and 26, “who has remained in the United States in a status other than that of a permanent resident for a period exceeding one year (other than an alien exempted from registration under this title and regulations prescribed thereunder) shall be liable for training and service in the Armed Forces of the United States, except that any such alien shall be relieved from liability for training and service under this title if, prior to his induction into the Armed Forces he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President; but any alien who makes such application shall thereafter be debarred from becoming a citizen of the United States. * * * ” 50 U.S.C.App. § 454(a).
. Selective Service Regulation 1622.42(b) provides as follows:
“(b) In Class IV-C shall be placed any registrant who is an alien and who has not been admitted to the United States for permanent residence but who has remained in the United States for a period exceeding one year and who has, prior to his induction, made application to be relieved from liability for training and service in the Armed Forces of the United States by filing with the local board an Application by Alien for Relief from Training and Service in the Armed Forces (SSS Form 130), executed in duplicate. * * * ”
. The House Report explaining the provision reads:
“Aliens who meet the qualitative tests and are eligible for admission into the United States are classified under existing law as either immigrants or nonimmigrants. The immigrant class includes those aliens who seek to enter the United States for permanent residence, while the nonimmigrant class includes those aliens who seek to enter for temporary periods of stay. The present law, and the instant bill, provide that all applicants for admission who do not qualify as nonimmigrants are to be regarded as applicants for admission as immigrants.” H. Rep.No.1365, 82nd Cong., 2d Sess., 1952 U.S.Code Cong. & Ad.News, pp. 1653, 1689.
Question: What is the specific issue in the case within the general category of "First Amendment - speech and other expression"?
A. obscenity
B. association
C. federal internal security and communist control acts, loyalty oaths, security risks
D. legality of expression in context of overt acts (speeches, parades, picketing, etc.) protesting race discrimination
E. overt acts - opposition to war and the military
F. conscientious objection to military service or other first amendment challenges to the military
G. expression of political or social beliefs conflicting with regulation of physical activity (includes demonstrations, parades, canvassing, picketing)
H. threats to peace, safety ,and order (except those covered above) (includes fighting words, clear and present danger, incitement to riot)
I. challenges to campaign spending limits or other limits on expression in political campaigns
J. other (includes tests of belief)
Answer:
|
sc_casesource
|
042
|
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.
EX PARTE FAHEY, FEDERAL HOME LOAN BANK COMMISSIONER, et al.
No. 133, Misc.
Argued April 30, 1947.
Decided June 23, 1947.
Oscar H. Davis argued the cause for petitioners. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Sonnett, Robert L. Stern, Paul A. Sweeney, Kenneth G. Heisler, Ray E. Dougherty and Mose Silverman.
Charles K. Chapman and Welburn Maycock argued the cause for Hall, United States District Judge. With Mr. Chapman on the brief were Peirson M. Hall, Wyckojj Westover and Harry 0. Wallace.
Mr. Justice Jackson
delivered the opinion of the Court.
This petition by John H. Fahey, individually and as Federal Home Loan Bank Commissioner, and A. V. Ammann, individually and as Conservator for the Long Beach Federal Savings and Loan Association, invokes the original jurisdiction of this Court. They ask leave to file petition for a writ of “mandamus and/or prohibition and/or injunction” against Judge Peirson M. Hall of the United States District Court for the Southern District of California to vacate his order allowing fees to counsel in Fahey v. Mallonee, decided today, ante, p. 245, to prohibit any further allowance therein, and to enjoin any payments heretofore allowed.
While an appeal in the principal case was pending in this Court, application was made by various counsel for the plaintiffs and associated interests therein for allowance of fees aggregating some $125,000. The District Court allowed counsel for plaintiffs $50,000 as a partial payment on account of services, but withheld action on other applications. Certain costs and expenses of the plaintiffs in the amount of $17,295.13 were also ordered reimbursed.
The petition involves serious questions of law and of fact. Whether, because of the pendency of the appeal and the stay order granted therein, the District Court had power to entertain the application, whether before the final outcome of the case could be known an allowance was premature, whether the source of the fund on deposit with the court was so related to the services as to be subject to disbursement for their compensation, and whether one judge can make allowances in a case before a three-judge court, are, with other questions, much contested. We do not decide any question as to the merits.
Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. We do not doubt power in a proper case to issue such writs. But they have the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him. These remedies should be resorted to only where appeal is a clearly inadequate remedy. We are unwilling to utilize them as substitutes for appeals. As extraordinary remedies, they are reserved for really extraordinary causes.
We find nothing in this case to warrant their use. An allowance of $50,000 will hardly destroy a twenty-six-million-dollar association during the time it would take to prosecute an appeal. The status of one of the applicants in the principal case is now settled so that he has standing to take all authorized appeals. We hold that the applicants’ grievance is one to be pursued by appeal at the proper time and to the appropriate court, rather than by resort to our original jurisdiction for extraordinary writs.
The petition is
Denied.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
sc_threejudgefdc
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
SCHNEIDER v. SMITH, COMMANDANT, UNITED STATES COAST GUARD.
No. 196.
Argued December 12-13, 1967.
Decided January 16, 1968.
Leonard, W. Schroeter and John Caughlan argued the cause and filed a brief for appellant.
John S. Martin, Jr., argued the cause for appellee. With him on the brief were Solicitor General Griswold, Assistant Attorney General Yeagley, Kevin T. Maroney and Lee B. Anderson.
Mr. Justice Douglas
delivered the opinion of the Court.
Appellant, who has served on board American-flag commercial vessels in various capacities, is now qualified to act as a second assistant engineer on steam vessels. But between 1949 and 1964 he was employed in trades other than that of a merchant seaman. In October 1964 he applied to the Commandant of the Coast Guard for a validation of the permit or license which evidences his ability to act as a second assistant engineer.
Under the Magnuson Act, 64 Stat. 427, 50 U. S. C. § 191 (b), the President is authorized, if he finds that “the security of the United States is endangered by . . . subversive activity,” to issue rules and regulations “to safeguard against destruction, loss, or injury from sabotage or other subversive acts” all “vessels” in the territories or waters subject to the jurisdiction of the United States.
President Truman promulgated Regulations, 33 CFR, pt. 6, which give the Commandant of the Coast Guard authority to grant or withhold validation of any permit or license evidencing the right of a seaman to serve on a merchant vessel of the United States. § 6.10-3. He is directed not to issue such validation unless he. is satisfied that “the character and habits of life of such person are such as to authorize the belief that the presence of the individual on board would not be inimical to the security of the United States.” § 6.10-1.
The questionnaire, which appellant in his application was required to submit, contained the following inquiry which he answered:
“Item 4. Do you now advocate, or have you ever advocated, the overthrow or alteration of the Government of the United States by force' or violence or by unconstitutional means?
“Answer: No.”
The questionnaire contained the following inquiries which related to his membership and participation in organizations which were on the special list of the Attorney General as authorized by Executive Order 10450, 18 Fed. Reg. 2489:
“Item 5. Have you ever submitted material for publication to any of the organizations listed in Item 6 below?
“Answer. No.
“Item 6. Are you now, or have you ever been, a member of, or affiliated or associated with in any way, any of the organizations set forth below? [There followed a list of more than 250 organizations.]
“Answer. Yes.
“If your answer is 'yes/ give full details in Item 7.
“Item 7. (Use this space to explain Items 1 through 6. . . . Attach a separate sheet if there is not enough space here.)
“Answer. I have been a member of many political & social organizations, including several named on this list.
“I cannot remember the names of most of them & could not be specific about any.
“To the best of my knowledge, I have not been a member or participated in the activities of any of these organizations for ten years.”
Upon receiving the questionnaire returned by the appellant, the Commandant advised him that the information was not sufficient and that answers to further interrogatories were necessary.
In reply, appellant, speaking through his counsel, admitted to the Commandant that he had been a member of the Communist Party as well as other organizations on the Attorney General’s list and that he had subscribed to People’s World. He said that he had joined the Party because of his personal philosophy and idealistic goals, but later quit it and the other organizations due to fundamental disagreement with Communist methods and techniques. But beyond that he said he would not answer because “it would be obnoxious to a truly free citizen to answer the kinds of questions under compulsion that you require.” The Commandant declined to process the application further, relying upon 33 CFR § 121.05 (d)(2), which authorizes him to hold the application in abeyance if an applicant fails or refuses to furnish the additional information.
Appellant thereupon brought this action for declaratory relief that the provisions of the Magnuson Act in question and the Commandant’s actions thereunder were unconstitutional, praying that the Commandant be directed to approve his application and that he be enjoined from interfering with appellant’s employment upon vessels flying the American flag.
A three-judge court was convened and the complaint was dismissed. 263 F. Supp. 496. The case is here on appeal, 28 U. S. C. § 1263. We postponed the question of jurisdiction to the merits. 389 U. S. 810.
We agree, as does appellee, that the case was one to be heard by a three-judge court and that accordingly we have jurisdiction of this appeal. For appellant did raise the question as to whether the statute was unconstitutional because of vagueness and abridgment of First Amendment rights and also questioned whether the power to install a screening program was validly delegated. A three-judge court was accordingly proper. Baggett v. Bullitt, 377 U. S. 360; Zemel v. Rusk, 381 U. S. 1.
The Magnuson Act gives the President no express authority to set up a screening program for personnel on merchant vessels of the United States. As respects “any foreign-flag vessels” the power to control those who “go or remain on board” is clear. 50 U. S. C. § 191 (a). As respects personnel of our own merchant ships, the power exists under the Act only if it is found in the power to “safeguard” vessels and waterfront facilities against “sabotage or other subversive acts,” that is, under § 191 (b). The Solicitor General argues that the power to exclude persons from vessels “clearly implies auhority to establish a screening procedure for determining who shall be allowed on board.” But that power to exclude is contained in § 191 (a) which, as noted, applies to “foreign-flag vessels,” while, as we have said, the issue tendered here must find footing in § 191 (b).
We agree with the District Court that keeping our merchant marine free of saboteurs is within the purview of this Act. Our question is a much narrower one.
The Regulations prescribe the standards by which the Commandant is to judge the “character and habits of life” of the employee to determine whether his “presence ... on board” the vessel would be “inimical to the security of the United States”:
“(a) Advocacy of the overthrow or alteration of the Government of the United States by unconstitutional means.
“(b) Commission of, or attempts or preparations to commit, an act of espionage, sabotage, sedition or treason, or conspiring with, or aiding or abetting another to commit such an act.
“(c) Performing, or attempting to perform, duties or otherwise acting so as to serve the interests of another government to the detriment of the United States.
“(d) Deliberate unauthorized disclosure of classified defense information.
“(e) Membership in, or affiliation or sympathetic association with, any foreign or domestic organization, association, movement, group, or combination of persons designated by the Attorney General pursuant to Executive Order 10450, as amended.” 33 CFR § 121.03.
If we assume arguendo that the Act authorizes a type of screening program directed at “membership” or “sympathetic association,” the problem raised by it and the Regulations would b'e kin to the one presented in Shelton v. Tucker, 364 U. S. 479, where a teacher to be hired by a public school of Arkansas had to submit an affidavit “listing all organizations to which he at the time belongs and to which he has belonged during the past five years.” Id., at 481.
We held that an Act touching on First Amendment rights must be narrowly drawn so that the precise evil is exposed; that an unlimited and indiscriminate search of the employee’s past which interferes with his associational freedom is unconstitutional. Id., at 487-490.
If we gave § 191 (b) the broad construction the Solicitor General urges, we would face here the kind of issue present in Shelton v. Tucker, supra, whether government can probe the reading habits, political philosophy, beliefs, and attitudes on social and economic issues of prospective seamen on our merchant vessels.
A saboteur on a merchant vessel may, of course, be dangerous. But no charge that appellant was a saboteur was made. Indeed, no conduct of appellant was at issue before the Commandant. The propositions tendered in the complaint were (1) plaintiff is now and always has been loyal to the United States; (2) he has not been active in any organization on the Attorney General’s list for the past 10 years; (3) he has never committed any act of sabotage or espionage or any act inimical to the security of the United States. Those propositions were neither contested by the Commandant nor conceded. He took the position that admission of evidence on those propositions was “irrelevant and immaterial.”
We are loath to conclude that Congress, in its grant of authority to the President to “safeguard” vessels and waterfront facilities from “sabotage or other subversive acts,” undertook to reach into the First Amendment area. The provision of the Act in question, 50 U. S. C. § 191 (b), speaks only in terms of actions, not ideas or beliefs or reading habits or social, educational, or political associations.
The purpose of the Constitution and Bill of Rights, unlike more recent models promoting a welfare state, was to take government off the backs of people. The First Amendment’s ban against Congress “abridging” freedom of speech, the right peaceably to assemble and to petition, and the “associational freedom” (Shelton v. Tucker, supra, at 490) that goes with those rights create a preserve where the views of the individual are made inviolate. This is the philosophy of Jefferson that “the opinions of men are not the object of civil government, nor under its jurisdiction .... [I]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order . ...”
No act of sabotage or espionage or any act inimical to the security of the United States is raised or charged in the present case.
In United States v. Rumely, 345 U. S. 41, the Court construed the statutory word “lobbying” to include only direct representation to Congress, its members, and its committees, not all activities tending to influence, encourage, promote, or retard legislation. Id., at 47. Such an interpretation of the statute, it was said, was “in the candid service of avoiding a serious constitutional doubt” (ibid.) — doubts that were serious “in view of the prohibition of the First Amendment.” Id., at 46.
The holding in Rumely was not novel. It is part of the stream of authority which admonishes courts to construe statutes narrowly so as to avoid constitutional questions.
The Court said in Rumely, “Whenever constitutional limits upon the investigative power of Congress have to be drawn by this Court, it ought only to be done after Congress has demonstrated its full awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits. Experience admonishes us to tread warily in this domain.” 345 U. S., at 46.
The present case involves investigation, not by Congress but by the Executive Branch, stemming from congressional delegation. When we read that delegation with an eye to First Amendment problems, we hesitate to conclude that Congress told the Executive to ferret out the ideological strays in the maritime industry. The words it used — “to safeguard . . . from sabotage or other subversive acts” — refer to actions, not to ideas or beliefs. We would have to stretch those words beyond their normal meaning to give them the meaning the Solicitor General urges. Rumely, and its allied cases, teach just the opposite — that statutory words are to be read narrowly so as to avoid questions concerning the “associational freedom” that Shelton v. Tucker protected and concerning other rights within the purview of the First Amendment.
Reversed.
Mr. Justice Black, while concurring in the Court’s judgment and opinion, also agrees with the statement in Mr. Justice Fortas’ concurring opinion that the statute under consideration, if construed to authorize the interrogatories involved, is offensive to the First Amendment.
Mr. Justice Marshall took no part in the consideration or decision of this case.
Section 191 provides in part:
“Whenever the President finds that the security of the United States is endangered by reason of actual or threatened war, or invasion, or insurrection, or subversive activity, or ’of disturbances or threatened disturbances of the international relations of the United States, the President is authorized to institute such measures and issue such rules and regulations—
“(a) to govern the anchorage and movement of any foreign-flag vessels in the territorial waters of the United States, to inspect such vessels at any time, to place guards thereon, and, if necessary in his opinion in order to secure such vessels from damage or injury, or to prevent damage or injury to any harbor or waters of the United States, or to secure the observance of rights and obligations of the United States, may take for such purposes full possession and control of such vessels and remove therefrom the officers and crew thereof, and all other persons not especially authorized by him to go or remain on board thereof;
“(b) to safeguard against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature, vessels, harbors, ports, and waterfront facilities in the United States, the Canal Zone, and all territory and water, continental or insular, subject to the jurisdiction of the United States.”
"1. With respect to your statements above, furnish the following information, fully and honestly to the best of your ability:
“(a) List the names of the political and social organizations to which you belonged, and location.
“(b) Furnish approximate dates of membership.
“(c) Furnish full particulars concerning the extent of your activities and participation in the organization's (number and type of meetings/functions attended; positions or offices held; classes or schools attended; contributions made; etc.).
“(d) Your reason for discontinuing the membership.
“(e) Your present attitude toward the principles and objectives of the organizations.
“If your answer is ‘YES’ to the following Questions, explain jully in the space provided at the end of the Interrogatories:
“2. Are you now, or have you ever been, a member of or affiliated with, in any way, the Communist Party, its Subdivisions, Subsidiaries, or Affiliates?
(Answer ‘Yes’ or ‘No.’)
“3. Have you at any time been a subscriber to the ‘People’s World’?
“. If your answer is ‘Yes,’ give dates.
(Answer ‘Yes’ or ‘No.’)
4. “Have you at any time engaged in any activities in behalf of
the ‘People’s World’? .
(Answer ‘Yes’ or ‘No.’)
“If your answer is ‘Yes,’ furnish details.
“5. What is your present attitude toward the Communist Party?
“6. What is your present attitude toward the principles and objectives of Communism?
“7. What is your attitude toward the form of Government in the United States?”
It is true that Senator Magnuson when discussing this measure stated that it “will give the President the authority to invoke th§ same kind of security measures which were invoked in World War I and in World War II.” 96 Cong. Pec. 10795. And from that the Solicitor General argues that the Act authorizes the broad sweeping personnel screening programs which were in force during World War II.
But this reference by Senator Magnuson apparently was to § 191 (a) which, as noted, covers “any foreign-flag vessels.” When it came to § 191 (b) Senator Magnuson did not speak in terms of any screening program, but said:
“It [the bill] also has this purpose, which I think is a good one: As I have said before, the last stronghold of subversive activity in this country, in my opinion, or at least the last concentrated stronghold, has been around our waterfronts. It would be impossible for destruction to come to any great port of the United States, of which there are many, as the result of a ship coming into port with an atomic bomb or with biological or other destructive agency, without some liaison ashore. This would give authority to the President to instruct the FBI, in cooperation with the Coast Guard, the Navy, or any other appropriate governmental agency, to go.to our water fronts and pick out people who might be subversives or security risks to this country. I think it goes a long way toward taking care of the domestic situation, as related to this subject, particularly in view of the large amount of talk we have had in the Senate within the past few days about Communists. The bill also protects that last loophole which is left, by which there might be some actual destruction along the shores of the United States.” 96 Cong. Rec. 11321.
A Bill for Establishing Religious Freedom, Jeffersonian Cyclopedia 976 (1900).
United States v. Delaware & H. Co., 213 U. S. 366, 407-408; United States v. Harriss, 347 U. S. 612, 618, n. 6; International Machinists v. Street, 367 U. S. 740, 749; Lynch v. Overholser, 369 U. S. 705, 710-711; United States v. National Dairy Corp., 372 U. S. 29, 32.
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer:
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sc_certreason
|
A
|
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.
MOE, SHERIFF, et al. v. CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE FLATHEAD RESERVATION et al.
No. 74-1656.
Argued January 20, 1976
Decided April 27, 1976
RehNquist, J., delivered the opinion for a unanimous Court.
Sam E. Haddon, Special Assistant Attorney General of Montana, argued the cause for appellants in No. 74-1656 and appellees in No. 75-50. With him on the briefs were Robert L. Woodahl, Attorney General, and Jean A. Turnage, Special Assistant Attorney General.
Richard A. Baenen argued the cause and filed a brief for appellees in No. 74 — 1656 and appellants in No. 75-50.
Together with No. 75-50, Confederated Salish and Kootenai Tribes of the Flathead Reservation et al. v. Moe, Sheriff, et al., also on appeal from the same court.
Briefs of amici curiae were filed by Slade Gorton, Attorney General, and Richard H. Holmquist, Assistant Attorney General, for the State of Washington; and by Michael Taylor for the Quinault Indian Nation.
Me. Justice Rehnquist
delivered the opinion of the Court.
We are called upon in these appeals to resolve several questions arising out of a conflict between the asserted taxing power of the State of Montana and the immunity claimed by the Confederated Salish and Kootenai Tribes (Tribe) and its members living on the tribal reservation. Convened as a three-judge court, the District Court for the District of Montana considered separate attacks on the State’s cigarette sales and personal property taxes as applied to reservation Indians. After finding that the suits were not barred by the prohibition of 28 U. S. C. § 1341, the District Court entered final judgments which, with one exception, sustained the Tribe's challenges, and from which the State has appealed (No. 74-1656). The Tribe has cross-appealed from that part of the judgments upholding tax jurisdiction over on-reservation sales of cigarettes by members of the Tribe to non-Indians. We noted probable jurisdiction under 28 U. S. C. § 1253 and consolidated the appeal and cross-appeal. 423 U. S. 819 (1975). Concluding that the District Court had the power to grant injunctive relief in favor of the Tribe, and that it was correct on the merits, we affirm in both cases.
I
In 1855 an expanse of land stretching across the Bitter Root River Valley and within the then Territory of Washington was reserved for “the use and occupation” of the “confederated tribes of the Flathead, Kootenay, and Upper Pend d’Oreilles Indians,” by the Treaty of Hell Gate, which in 1859 was ratified by the Senate and proclaimed by President Buchanan. 12 Stat. 975. Slightly over half of its 1.25 million acres is now owned in fee, by both Indians and non-Indians; most of the remaining half is held in trust by the United States for the Tribe. Approximately 50% of the Tribe’s current membership of 5,749 resides on the reservation and in turn composes 19% of the total reservation population. Embracing portions of four Montana counties — Lake, Sanders, Missoula, and Flathead — the present reservation was generally described by the District Court:
“The Flathead Reservation is a well-developed agricultural area with farms, ranches and communities scattered throughout the inhabited portions of the Reservation. While some towns have predominantly Indian sectors, generally Indians and non-Indians live together in integrated communities. Banks, businesses and professions on the Reservation provide services to Indians and non-Indians alike.
“As Montana citizens, members of the Tribe are eligible to vote and do vote in city, county and state elections. Some hold elective and appointed state and local offices. All services provided by the state and local governments are equally available to Indians and non-Indians. The only schools on the Reservation are those operated by school districts of the State of Montana. The State and local governments have built and maintain a system of state highways, county roads and streets on the Reservation which are used by Indians and non-Indians without restriction.” 392 F. Supp. 1297, 1313 (1975).
Joseph Wheeler, a member of the Tribe, leased from it two tracts of trust land within the reservation whereon he operated retail “smoke shops.” Deputy sheriffs arrested Wheeler and an Indian employee for failure to possess a cigarette retailer’s license and for selling non-tax-stamped cigarettes, both misdemeanors under Montana law. These individuals, joined by the Tribe and the tribal chairmen, then sued in the District Court for declaratory and injunctive relief against the State’s cigarette tax and vendor-licensing statutes as applied to tribal members who sold cigarettes within the reservation. That court by a divided vote held that our decision in McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973), barred Montana’s efforts to impose its cigarette tax statutes on the Tribe’s retail cigarette sales with one exception: it may require a precollection of the tax imposed by law upon the non-Indian purchaser of the cigarettes.
In a later action, the Tribe and four enrolled members, all residents of the reservation, challenged Montana’s statutory scheme for assessment and collection of personal property taxes, in particular the imposition of such taxes on motor vehicles owned by tribal members residing on the reservation. The District Court, again by a divided vote, found its earlier decision interpreting Mc-Clanahan controlling in the Tribe’s favor. While recognizing, as did the Tribe, that a fee required for registration and issuance of state license plates for a motor vehicle could be exacted from Indians residing on the reservation, the court held that the additional personal property tax which was likewise made a condition precedent for lawful registration of the vehicle could not be imposed on reservation Indians.
II
The important threshold question in both cases is whether the District Court was prohibited from entertaining jurisdiction over these suits to restrain Montana’s taxing authority, inasmuch as Congress has provided that
“[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U. S. C. § 1341.
By enacting this jurisdictional rule, Congress gave explicit sanction to the pre-existing federal equity practice: because interference with a State’s internal economy is inseparable from a federal action to restrain state taxation,
“ 'the mere illegality or unconstitutionality of a state . . . tax is not in itself a ground for equitable relief in the courts of the United States. If the remedy at law is plain, adequate, and complete, the aggrieved party is left to that remedy in the state courts, from which the cause may be brought to this Court for review if any federal question be involved.’ Matthews v. Rodgers, [284 U. S. 521, 525-526 (1932)].” Great Lakes Co. v. Huffman, 319 U. S. 293, 298 (1943).
This broad jurisdictional barrier, however, has been held by this Court to be inapplicable to suits brought by the United States “to protect itself and its instrumen-talities from unconstitutional state exactions.” Department of Employment v. United States, 385 U. S. 355, 358 (1966).
The District Court, citing Department of Employment and cases from other' courts, concluded:
“While the exceptions to § 1341 have been expressed most often in terms of the Federal instrumentality doctrine, we do not view the exceptions as limited to cases where this doctrine is clearly applicable. It seems clear [that § 1341] does not bar federal court jurisdiction in cases where immunity from state taxation is asserted on the basis of federal law with respect to persons or entities in which the United States has a real and significant interest.” 392 F. Supp., at 1303 (emphasis added).
In its brief the State argues that any reliance on the federal-instrumentality doctrine, either as such or as expanded by the District Court, for purposes of finding jurisdiction in these cases is contrary to the substantive decisions of this Court which “cut to the bone the proposition that restricted Indian lands and the proceeds from them were — as a matter of constitutional law— automatically exempt from state taxation.” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 150 (1973). See McClanahan, 411 U. S., at 170 n. 5; Oklahoma Tax Comm’n v. Texas Co., 336 U. S. 342 (1949); Oklahoma Tax Comm’n v. United States, 319 U. S. 598 (1943).
We have indeed recently declined “the invitation to resurrect the expansive version of the intergovernmental-immunity doctrine that has been so consistently rejected” in this kind of case. Mescalero, supra, at 155. While the concept of a federal instrumentality may well have greater usefulness in determining the applicability of § 1341, Department of Employment v. United States, supra, than in providing the touchstone for deciding whether or not Indian tribes may be taxed, Mescalero, supra, we do not believe that the District Court’s expanded version of this doctrine, quoted above, can by itself avoid the bar of § 1341.
The District Court, however, also relied on a more recent jurisdictional statute, 28 U. S. C. § 1362, which provides:
“The district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States.”
Sections 1341 and 1362 do not cross-reference each other. Since presumably all actións properly within the jurisdiction of the United States district courts are authorized by one or another of the statutes conferring jurisdiction upon those courts, the mere fact that a jurisdictional statute such as § 1362 speaks in general terms of “all” enumerated civil actions does not itself signify that Indian tribes are exempted from the provisions of § 1341.
Looking to the legislative history of § 1362 for whatever light it may shed on the question, we find an indication of a congressional purpose to open the federal courts to the kind of claims that could have been brought by the United States as trustee, but for whatever reason were not so brought. Section 1362 is characterized by the reporting House Judiciary Committee as providing “the means whereby the tribes are assured of the same judicial determination whether the action is brought in their behalf by the Government or by their own attorneys.” While this is hardly an unequivocal statement of intent to allow such litigation to proceed irrespective of other explicit jurisdictional limitations, such as § 1341, it would appear that Congress contemplated that a tribe’s access to federal court to litigate a matter arising “under the Constitution, laws, or treaties” would be at least in some respects as broad as that of the United States suing as the tribe’s trustee.
That the United States could have brought these actions, by itself or as coplaintiff, seems reasonably clear. In Heckman v. United States, 224 U. S. 413 (1912), the United States sued to cancel numerous conveyances by Cherokee allottees-grantors, who were not parties, as vio-lative of federal restrictions upon the Indians’ power of alienation. In the course of concluding that the United States had the requisite interest in enforcing these restrictions for the Indians’ benefit, the Court discussed United States v. Rickert, 188 U. S. 432 (1903), which upheld the right of the Government to seek injunctive relief against county taxation directed at improvements on and tools used to cultivate land allotted to and occupied by the Sioux Indians. Of Rickert, the Court in Heckman stated:
“But the decision [that the United States had the requisite interest] rested upon a broader foundation than the mere holding of a legal title to land in trust, and embraced the recognition of the interest of the United States in securing immunity to the Indians from taxation conflicting with the measures it had adopted for their protection.” 224 U. S., at 441.
Here the United States could have made the same attack on the State’s assertion of taxing power as was in fact made by the Tribe. Heckman v. United States, supra. We think that the legislative history of § 1362, though by no means dispositive, suggests that in certain respects tribes suing under this section were to be accorded treatment similar to that of the United States had it sued on their behalf. Since the United States is not barred by § 1341 from seeking to enjoin the enforcement of a state tax law, Department of Employment v. United States, supra, we hold that the Tribe is not barred from doing so here.
Ill
In McClanahan this Court considered the question whether the State had the power to tax a reservation Indian, a Navajo, for income earned exclusively on the reservation. We there looked to the language of the Navajo treaty and the applicable federal statutes “which define the limits of state power.” 411 U. S., at 172. Reading them against the “backdrop” of the Indian sovereignty doctrine, the Court concluded “that Arizona ha[d] exceeded its lawful authority” by imposing the tax at issue. Id., at 173. In Mescolero, the companion case, the import of McClanahan was summarized:
“[I]n the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan v. Arizona State Tax Comm’n, supra, lays to rest any doubt in this respect by holding that such taxation is not permissible absent congressional consent.” 411 U. S., at 148.
Aligning itself with the dissenting opinion below, the State first seeks to avoid McClanahan on two grounds: (1) the manner in which the Flathead Reservation has developed to its present state distinguishes it from the Navajo Reservation; (2) there does exist a federal statutory basis permitting Montana to tax.
The State pointed below to a variety of factors: reservation Indians benefited from expenditures of state revenues for education, welfare, and other services, such as a sewer system; the Indians had the right to vote and to hold local and state office; and the Indian and non-Indian residents within the reservation were substantially integrated as a business and social community. The District Court also found, however, that the Federal Government “likewise made substantial payments for various purposes,” and that the Tribe’s own income contributed significantly to its economic well-being. 392 F. Supp., at 1314. Noting this Court’s rejection of a substantially identical argument in McClanahan, see 411 U. S., at 173, and n. 12, and the fact that the Tribe, like the Navajos, had not abandoned its tribal organization, the District Court could not accept the State’s proposition that the tribal members “are now so completely integrated with the non-Indians . . . that there is no longer any reason to accord them different treatment than other citizens.” 392 F. Supp., at 1315. In view of the District Court’s findings, we agree that there is no basis for distinguishing McClanahan on this ground.
As to the second ground, we note that the State does not challenge the District Court's overall conclusion that the treaty and statutes upon which the Tribe relies in asserting the lack of state taxing authority “are essentially the same as those involved in McClanahan.” We agree, and it would serve no purpose to retrace our analysis in this respect in McClanahan, 411 U. S., at 173-179. The State instead argues that the District Court failed to properly consider the effect of the General Allotment Act of 1887, 24 Stat. 388, and a later enactment in 1904, 33 Stat. 302, applying that Act to the Flathead Reservation. Section 6 of the General Allotment Act, 24 Stat. 390, as amended, 25 U. S. C. § 349, provides in part:
“At the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee . . . then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside ...
The State relies on Goudy v. Meath, 203 U. S. 146 (1906), where the Court, applying the above section, rejected the claim of an Indian patentee thereunder that state taxing jurisdiction was not among the “laws” to which he and his land had been made subject. Building on Goudy and the fact that the General Allotment Act has never been explicitly “repealed,” the State claims that Congress has never intended to withdraw Montana’s taxing jurisdiction, and that such power continues to the present.
We find the argument untenable for several reasons. By its terms § 6 does not reach Indians residing or producing income from lands held in trust for the Tribe, which make up about one-half of the land area of the reservation. If the General Allotment Act itself establishes Montana’s jurisdiction as to those Indians living on “fee patented” lands, then for all jurisdictional purposes — civil and criminal — the Flathead Reservation has been substantially diminished in size. A similar claim was made by the State in Seymour v. Superintendent, 368 U. S. 351 (1962), to which we responded:
“ [The] argument rests upon the fact that where the existence or nonexistence of an Indian reservation, and therefore the existence or nonexistence of federal jurisdiction, depends upon the ownership of particular parcels of land, law enforcement officers operating in the area will find it necessary to search tract books in order to determine whether criminal jurisdiction over each particular offense, even though committed within the reservation, is in the State or Federal Government.” Id., at 358.
We concluded that “[s]ueh an impractical pattern of checkerboard jurisdiction,” ibid., was contrary to the intent embodied in the existing federal statutory law of Indian jurisdiction. See also United States v. Mazurie, 419 U. S. 544, 554-555 (1975).
The State’s argument also overlooks what this Court has recently said of the present effect of the General Allotment Act and related legislation of that era:
“Its policy was to continue the reservation system and the trust status of Indian lands, but to allot tracts to individual Indians for agriculture and grazing. When all the lands had been allotted and the trust expired, the reservation could be abolished. Unallotted lands were made available to non-Indians with the purpose, in part, of promoting interaction between the races and of encouraging Indians to adopt white ways. See § 6 of the General Allotment Act, 24 Stat. 390 . . . .” Mattz v. Arnett, 412 U. S. 481, 496 (1973).
“The policy of allotment and sale of surplus reservation land was repudiated in 1934 by the Indian Reorganization Act, 48 Stat. 984, now amended and codified as 25 U. S. C. § 461 et seg.” Id., at 496 n. 18.
The State has referred us to no decisional authority— and we know of none — giving the meaning for which it contends to § 6 of the General Allotment Act in the face of the many and complex intervening jurisdictional statutes directed at the reach of state law within reservation lands — statutes discussed, for example, in McClanahan, 411 U. S., at 173-179. See also Kennerly v. District Court of Montana, 400 U. S. 423 (1971). Congress by its more modem legislation has evinced a clear intent to eschew any such “checkerboard” approach within an existing Indian reservation, and our cases have in turn followed Congress’ lead in this area.
A second, discrete claim advanced by the State is that the tax immunity extended by the District Court in applying federal law constitutes an invidious discrimination against non-Indians on the basis of race, contrary to the Due Process Clause of the Fifth Amendment. It is said that the Federal Government has forced this racially based exemption onto Montana so as to create a state statutory classification violative of the latter’s duty under the Equal Protection Clause of the Fourteenth Amendment.
We need not dwell at length on this constitutional argument, for assuming that the State has standing to raise it on behalf of its non-Indian citizens and taxpayers, we think it is foreclosed by our recent decision in Morton v. Mancari, 417 U. S. 535 (1974). In reviewing the variety of statutes and decisions according special treatment to Indian tribes and reservations, we stated, id., at 552-555:
“Literally every piece of legislation dealing with Indian tribes and reservations . . . single [s] out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U. S. C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized.
“On numerous occasions this Court specifically has upheld legislation that singles out Indians for particular and special treatment.”
The test to be applied to these kinds of statutory preferences, which we said were neither “invidious” nor “racial” in character, governs here:
“As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.” Id., at 555.
For these reasons, the personal property tax on personal property located within the reservation; the vendor license fee sought to be applied to a reservation Indian conducting a cigarette business for the Tribe on reservation land; and the cigarette sales tax, as applied to on-reservation sales by Indians to Indians, conflict with the congressional statutes which provide the basis for decision with respect to such impositions. McClanahan, supra; Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973).
IY
The Tribe would carry these cases significantly further than we have done, however, and urges that the State cannot impose its cigarette tax on sales by Indians to non-Indians because “[i]n simple terms, [the Indian retailer] has been taxed, and . . . has suffered a measurable out-of-pocket loss.” But this claim ignores the District Court’s finding that “it is the non-Indian consumer or user who saves the tax and reaps the benefit of the tax exemption.” 392 F. Supp., at 1308. That finding necessarily follows from the Montana statute, which provides that the cigarette tax “shall be conclusively presumed to be [a] direct [tax] on the retail consumer precollected for the purpose of convenience and facility only.” Since nonpayment of the tax is a misdemeanor as to the retail purchaser, the competitive advantage which the Indian seller doing business on tribal land enjoys over all other cigarette retailers, within and without the reservation, is dependent on the extent to which the non-Indian purchaser is willing to flout his legal obligation to pay the tax. Without the simple expedient of having the retailer collect the sales tax from non-Indian purchasers, it is clear that wholesale violations of the law by the latter class will go virtually unchecked.
The Tribe asserts that to make the Indian retailer an “involuntary agent” for collection of taxes owed by non-Indians is a “gross interference with [its] freedom from state regulation,” and cites Warren Trading Post v. Arizona Tax Comm’n, 380 U. S. 685 (1965), as controlling. However, that case involved a gross income tax imposed on the on-reservation sales by the trader to reservation Indians. Unlike the sales tax here, the tax was imposed directly on the seller, and, in contrast to the Tribe’s claim, there was in Warren no claim that the State could not tax that portion of the receipts attributable to on-reservation sales to non-Indians. Id., at 686 n. 1. Our conclusion in Warren that assessment and collection of that tax “would to a substantial extent frustrate the evident congressional purpose of ensuring that no burden shall be imposed upon Indian traders for trading with Indians on reservations,” id., at 691, does not apply to the instant case.
The State’s requirement that the Indian tribal seller collect a tax validly imposed on non-Indians is a minimal burden designed to avoid the likelihood that in its absence non-Indians purchasing from the tribal seller will avoid payment of a concededly lawful tax. Since this burden is not, strictly speaking, a tax at all, it is not governed by the language of Mescalero, quoted supra, at 475-476, dealing with the “special area of state taxation.” We see nothing in this burden which frustrates tribal self-government, see Williams v. Lee, 358 U. S. 217, 219-220 (1959), or runs afoul of any congressional enactment dealing with the affairs of reservation Indians, United States v. McGowan, 302 U. S. 535, 539 (1938): “Enactments of the Federal Government passed to protect and guard its Indian wards only affect the operation, within the colony, of such state laws as conflict with the federal enactments.” See also Thomas v. Gay, 169 U. S. 264, 273 (1898). We therefore agree with the District Court that to the extent that the “smoke shops” sell to those upon whom the State has validly imposed a sales or excise tax with respect to the article sold, the State may require the Indian proprietor simply to add the tax to the sales price and thereby aid the State’s collection and enforcement thereof.
For the foregoing reasons, the judgments of the District Court are
Affirmed.
See 28 U. S. C. § 2281.
See Part II, infra, for the discussion of the jurisdictional question.
For ease of reference, the various parties involved in the appeal and cross-appeal will be referred to simply as the State and the Tribe, except as otherwise noted.
The defendants-appellants in the cigarette tax case are Montana's Department of Revenue, its director, and the sheriffs of the counties in which the "smoke shops” were located. No monetary-relief has been sought in this action.
Suit was brought shortly after the arrests. The record does not indicate whether criminal proceedings were instituted in state court, and in any case the State has made no claim as to the propriety of the District Court’s entry of relief under Younger v. Harris, 401 U. S. 37 (1971), and related decisions Of this Court.
The District Court noted that the State’s present statutory Scheme contemplates advance payment or “precollection” of the sales tax by the retailer when he purchases his inventory from the wholesaler. Recognizing that its holding — a distinction between sales to Indians and to non-Indians — would result in “complicated problems” of enforcement by the State, the District Court deferred passing on these problems pending a decision by this Court. We, of course, express no-opinion on this question.
Named as defendants were various county officials, the State’s Department of Revenue and its director, and the State itself. In contrast to the cigarette tax case, however, the plaintiffs, suing as representatives of all other members of the Tribe residing on the reservation, demanded a refund of personal property taxes paid to the date of the District Court’s final judgment. In the opinion accompanying the District Court’s judgment entering the requested declaratory and injunctive relief in favor of the Tribe and the individual Indians, it stated that “any further questions” were reserved pending this Court’s final determination of the constitutionality of the personal property tax statutes. Our conclusions in Parts II and III, infra, that the District Court, with subject-matter jurisdiction over the Tribe’s claims, properly entered injunctive relief in its favor implicitly embrace a finding that the Tribe, qua Tribe, has a discrete claim of injury with respect to these forms of state taxation so as to confer standing upon it apart from the monetary injury asserted by the individual Indian plaintiffs. Since the substantive interest which Congress has sought to protect is tribal self-government, such a conclusion is quite consistent with other doctrines of standing. See, e. g., Warth v. Seldin, 422 U. S. 490, 498-499 (1975). Whether in like fashion standing rests in the Tribe to litigate the pending individual refimd claims is a question properly left for the District Court as and when these claims are pursued, and we express no opinion thereon. We note, however, that if only the individual Indians have standing to sue for refunds, their claims must be properly grounded jurisdictionally. See, e. g., Zahn v. International Paper Co., 414 U. S. 291, 294 (1973).
The Tribe and the individual members had earlier filed an identical attack against Montana’s personal income tax as applied to income earned by tribal members on the reservation. Shortly after this Court’s decision in McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973), the State stipulated that McClanahan barred its taxing jurisdiction in this respect and agreed to cease voluntarily its collection efforts and make refunds. Relying on this settlement, the Tribe thereafter requested the State’s Attorney General to order a similar cessation with respect to personal property taxes. Advised that its request was rejected, the Tribe instituted this action.
The Tribe has from the beginning expressly disclaimed any immunity from this nondiseriminatory vehicle registration fee.
There the United States sought injunctive relief against certain state taxation of its coplaintiff, the American National Red Cross, which on the merits this Court held was immune from same as a federal instrumentality.
Section 1341 itself, of course, includes a proviso that the remedy in state court must be "plain, speedy and efficient.” The Tribe does not claim that it would not have had such a remedy under Montana law.
H. R. Rep. No. 2040, 89th Cong., 2d Sess., 2-3 (1966).
Heckman and Bickert were both eases in which the protection asserted by the United States on behalf of the Indians was grounded in the federal-instrumentality doctrine. Since Mescalero, as we have noted, effectively eliminated that doctrine as a basis for immunizing Indians from state taxation, there might appear to be a certain inconsistency in our reliance on Heckman. But the question of whether the United States has standing (Heckman used the term “capacity”) to sue on behalf of others is analytically distinct from the question of whether the substantive theory on which it relies will prevail, and each is in turn separate from whether in-junctive relief can issue at the United States' behest irrespective of § 1341. Department of Employment, see supra, at 470, and n. 10, did not hold that the United States had standing only in actions falling within the federal-instrumentality doctrine. Cases in the lower federal courts cited therein (385 U. S., at 358 n. 6), e. g., United States v. Arlington County, Virginia, 326 F. 2d 929, 931-933 (CA4 1964), and other cases from this Court, see In re Debs, 158 U. S. 564, 584 (1895); United States v. San Jacinto Tin Co., 125 U. S. 273, 284-286 (1888), indicate otherwise. The proper basis for the protection asserted here, of course, is not the federal-instrumentality doctrine eschewed in Mescalero, but is that which McClanahan identified, i. e., that state taxing jurisdiction has been pre-empted by the applicable treaties and federal legislation. While not deciding what limits there are upon the United States’ standing to' sue absent enabling legislation, we conclude that the relationship between the United States and the .Tribe — grounded in the Hell Gate Treaty and a century of subsequent legislation — would have established the former’s standing to raise the pre-emption claim on behalf of the latter, and that an injunctive remedy to enforce that claim would not have been barred by § 1341.
The District Court went on to find jurisdiction over the individual Indian plaintiffs in both actions on the basis of 28 U. S. C. § 1343 (3), together with their allegation that these taxes deprived them of a right secured by the Commerce Clause. Noting that § 1362 by its terms goes only to an “Indian tribe or band,” the State has argued that to hold § 1341 inapplicable merely because the state tax is attacked on constitutional grounds virtually strips it of force and is contrary to other federal-court decisions: Bland v. McHann, 463 F. 2d 21 (CA5 1972), cert. denied, 410 U. S. 966 (1973); American Commuters Assn., Inc. v. Levitt, 405 F. 2d 1148 (CA2 1969). Cf. Lynch v. Household Finance Corp., 405 U. S. 538, 542 n. 6 (1972). The Tribe’s brief does not discuss this aspect of the District Court’s holding. We need not decide this question, however, since all of the substantive issues raised on appeal can be reached by deciding the claims of the Tribe alone, which did bring this action in the District Court under § 1362. See n. 7, supra. Cf. California Bankers Assn. v. Shultz, 416 U. S. 21 (1974). Any further proceedings with respect to refund claims by or on behalf of individual Indians, see n. 7, supra, would not appear to implicate § 1341.
The quotation is taken from the first (unpublished) opinion of the District Court, Civ. No. 2145 (Mont., Oct. 10, 1073), Jurisdictional Statement, App. 73, 81 n. 9, the conclusions of which with respect to McClanahan were reaffirmed in the later opinions filed May 10, 1974, February 4, 1975, and March 19, 1975, published at 392 F. Supp. 1297, 1312; 392 F. Supp. 1325.
The District Court noted two further distinctions within its ruling. It extended its holding to sales of cigarettes to Indians living on the Flathead Reservation irrespective of their actual membership in the plaintiff Tribe. The State has not challenged this holding, and we therefore do not disturb it. Secondly, while recognizing that different rules may apply “where Indians have left the reservation and become assimilated into the general community,” McClanahan, 411 U. S., at 171, the District Court on the present record did not decide whether the cigarette sales tax would apply to on-reservation sales to Indians who resided off the Flathead Reservation. That question, too, is therefore not before us.
It is thus clear that the basis for the invalidity of these taxing measures, which we have found to be inconsistent with existing federal statutes, is the Supremacy Clause, U. S. Const., Art. VI, cl. 2, and not any automatic exemptions “as a matter of constitutional law” either under the Commerce Clause or the intergovernmental-immunity doctrine as laid down originally in M‘Culloch v. Maryland, 4 Wheat. 316 (1819). If so, then the basis for convening a three-judge court in this type of case has effectively disappeared, for this Court has expressly held that attacks on state statutes raising only Supremacy Clause invalidity do not fall within the scope of 28 U. S. C. § 2281. Swift & Co. v. Wickham, 382 U. S. 111 (1965). Here, however, the District Court properly convened a § 2281 court, because at the outset the Tribe’s attack asserted unconstitutionality of these statutes under the Commerce Clause, a not insubstantial claim since Mescaiero and McClanahan had not yet been decided. See Goosby v. Osser, 409 U. S. 512 (1973).
Mont. Rev. Code Ann. § 84-5606 (1) (1947).
§§ 84-5606.18, 84-5606.31 (Supp, 1975).
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_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
O’NEILL v. DISTRICT OF COLUMBIA.
No. 8188.
United States Court of Appeals for the District of Columbia.
Argued Nov. 12, 1942.
Decided Dec. 21, 1942.
Mr. E. W. Mollohan, Jr., of Washington, D. C., for petitioner. Messrs. Vincent A. Sheehy, Jr., and Arthur C. Elgin, both of Washington, D. C., were on the brief for petitioner. Mr. Donald S. Caruthers, of Washington, D. C., also entered an appearance for petitioner.
Mr. Glenn Simmon, Assistant Corporation Counsel, with whom Messrs. Richmond B. Keech, Corporation Counsel, and Vernon E. West, Principal Assistant Corporation Counsel, all of Washington, D. C., were on the brief for respondent.
Before GRONER, Chief Justice, and VINSON and RUTLEDGE, Associate Justices.
GRONER, C. J.
Charles J. O’Neill, a resident of the District of Columbia, died March 17, 1941. Paragraph two of his will is as follows:
“ * * * All the rest, residue and remainder of my estate, of every kind and description, real and personal, wheresoever and however situated, now possessed or that may hereafter be acquired by me, including any lapsed or void legacy or devise, I give, devise and bequeath unto my wife, Julia F. O’Neill, for and during the term of her natural life, and on her death unto my daughters, Julia Mary O’Neill and Helena O’Neill, absolutely and in fee simple, share and share alike, and in the event that either of them be then dead unto the survivor of them, absolutely and. in fee simple, unless the deceased daughter leave issue surviving in which event ’each surviving issue shall be entitled to the share thereof to which the deceased daughter would have been entitled if living, distributable among such issue, per stirpes and not per capita.”
The widow qualified as executrix and in due time filed the required District of Columbia inheritance tax return. She reported a life estate passing to herself and a vested remainder passing to her daughters, Julia and Helena, and computed the tax accordingly. The Assessor, being of opinion that under the provisions of the District of Columbia Inheritance Tax Act the interest of. the daughters should be treated as a contingent rather than a vested remainder, assessed the tax on that basis.
The District Board of Tax Appeals affirmed the Assessor’s holding in this respect. On this appeal the question is: Was the interest left by the decedent to his daughters vested or contingent? The applicable statute is District of Columbia Revenue Act of 1937, 50 Stat. 686, Chap. 690, Title V, § 10, as amended by the Act of May 16, 1938, 52 Stat. 361, Chap. 223, Sec. 5(d), D.C.Code 1940, § 47, 1607, which reads in part as follows:
“In the case of any grant, deed, devise, descent, or bequest of a life interest or term of years, the donee for life or years shall pay a tax only on the value of his interest, determined in a manner as the Commissioners by regulation may prescribe, and the donee of the future interest shall pay a tax only on his interest as based upon the value thereof .at the time of the death of the decedent creating such interest. The value of any future interest shall be determined by deducting from the market value of such property at the time of the death of such decedent the value of the precedent life interest or term of years. Where the future interest is vested the donee thereof shall pay the tax within the time in which the tax upon the precedent life interest or term of years is required to be paid under the provisions of sections 4 and 7 of this article [sections 47-1604 and 47-1606], as the case may be. Where the future interest is contingent the personal representative of such decedent or the persons interested in such contingent future estate shall have the option of (1) paying, within the time herein provided for the payment of taxes due upon vested future interests, a tax equal to the mean between the highest possible tax and the lowest possible tax' which could be imposed under any contingency or condition whereby such contingent future interest might be wholly or in part created, defeated, extended, or abridged; or (2) paying the tax upon such transfer at the time when such future interest shall become vested at rates and with exemptions in force at the time of the death of such decedent: * *
This statute and the regulations made pursuant thereto definitely distinguish between a vested interest and a contingent interest and specifically provide a different method of taxation for. each, with the result that, in this case, the amount of the tax will be larger if the estate passing to the daughters is contingent than if it is vested.
The District Board of Tax Appeals held, on the authority of Klein v. United States, 283 U.S. 231, 51 S.Ct. 398, 75 L.Ed. 996, and Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, that an interest which, by the local property law, is a vested remainder subject to be divested upon the happening of some uncertain future event is nevertheless, for the purpose of the local tax statute, a contingent remainder. But in our opinion there is nothing in the District of Columbia statute which will justify this conclusion. In the District of Columbia the characteristics of a “vested interest” and a “contingent interest” have been firmly established by repeated decisions of this court, and likewise by statutory enactment. Congress, in enacting the law in .question, was legislating solely for the District, and in using the terms “vested” and “contingent” without defining them, recognized as valid for tax purposes the well established distinction between these two classes of estates. To hold otherwise would be to ignore the canon of construction which requires that every word of a statute be given its ordinary and natural meaning.
In this view we are of opinion that the decisions in the' Klein and Hallock cases are inapplicable. In. each, the decedent had created a trust in favor of his wife, with a provision that if the husband survived the wife the property was to revert to him. In each case the Supreme Court held that the trust property should be included in the decedent’s gross estate under the Federal Revenue Act, which defines gross estate as including any property as to which there has been a transfer, by trust or otherwise, intended to take effect in possession or enjoyment at or after death. The rationale of the decisions was that it was the purpose of Congress to tax the transfer of interests which ripened into full enjoyment only at the death of the transferor, that this purpose could not be thwarted by the application of the “refined technicalities of the law of property” to inter vivos transactions which were in effect contingent upon and incomplete until death, and that the “importation of these distinctions and controversies from the law of property into the administration of the estate tax precludes a fair and workable tax system.”
These principles have no place here. For this case involves a wholly different disposition of property and arises under wholly different statutory enactments. There is here no attempt to thwart the statute or evade taxation. The interest devised and bequeathed admittedly arises on the death of the testator and is clearly taxable under the local act. The question is, how it shall be taxed. To answer that question by determining whether it is vested or contingent is not to preclude a workable system, for the act itself provides one method in the case of the former and another in the case of the latter. Since, as we have seen, Congress used these terms in their ordinary meaning, all that is required is the determination whether, according to the established property laws of the District of Columbia, this interest' is a vested or contingent remainder.
The answer is not difficult, for this court, following the decision of the Supreme Court in Doe ex dem. Poor v. Considine, 6 Wall. 458, 18 L.Ed. 869, has frequently held that devises substantially similar to that in the will of Charles J. O’Neill here create in the devisees vested estates, and the statute of the District of Columbia, which we quote in the margin, confirms the ruling. Both daughters at the time of the father’s death were in being and had capacity to take immediate possession upon the termination of their mother’s life estate. The devise and bequest of the father to the daughters gave them the property “absolutely and in fee simple”, with enjoyment in possession postponed. The added words “and in the event that either of them be then dead unto the survivor of them * * etc., relate, under the rule expressly recognized in Doe ex dem. Poor v. Considine, supra, to the time of enjoyment and not to the time of vesting in interest.
Respondent, in a supplement to its brief filed after the argument, attempts to support the holding of the Board by cases from New York, Illinois and Ohio. But these authorities are concerned with the construction of particular inheritance tax statutes which are essentially different in the respect in which we are concerned from the one involved here. Each of the three statutes carefully defines contingent interests for the purpose of taxation as interests which may be wholly or in part created, defeated, extended or abridged. None of these statutes attempts to differentiate between future interests that are vested and future interests that are contingent in accord with the law of property. The obvious legislative purpose in all three was to make the tax applicable in every case in which there is any contingency which might make it impossible to determine who would actually enjoy the property upon the termination of the preceding estate. This is not true of the local tax statute, which, as we have seen, recognizes and taxes separately and differently vested estates and contingent estates and itself leaves such estates undefined and therefore, subject to the statutory definition in existing law. The vital difference between the District statute and the statutes of New York, Illinois and Ohio is that in the latter the Legislatures expressly adopted what may be said to be the lay view of contingent estates, while Congress, in the former, did not.
We are of opinion that the decision of the Board that the interest of Julia and Helena was contingent and not vested is wrong.
Reversed.
Richardson v. Penicks, 1 App.D.C. 261; O’Brien v. Dougherty, 1 App.D.C. 148; Marshall v. Augusta, 5 App.D.C. 183; Craig v. Rowland, 10 App.D.C. 402; Hauptman v. Carpenter, 16 App.D.C. 524; Vogt v. Vogt, 26 App.D.C. 46; Fields v. Gwynn, 19 App.D.C. 99; Green v. Gordon, 38 App.D.C. 443.
D.C.Code (1940) § 45 — 812. “A future estate is vested when there is a person in being who would have an immediate right to the possession of the land upon the expiration of the intermediate or precedent estate, or upon the arrival of a certain period or event when it is to commence in possession. It is contingent when the person to whom or the event upon which it is limited to take effect in possession or become a vested estate is uncertain.”
In re Vanderbilt’s Estate, 172 N.Y. 69, 64 N.E. 782; People v. Byrd, 253 Ill. 223, 97 N.E. 293; Tax Commission of Ohio v. Commerce Bank, 24 Ohio App. 331, 157 N.E. 423.
gee D.C.Statute, supra, footnote 2.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_r_state
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellant, v. F. C. HATHAWAY, Appellee.
No. 15269.
United States Court of Appeals Ninth Circuit.
March 26, 1957.
Walter J. Cosgrave, Maguire, Shields, Morrison & Bailey, Portland, Or., for appellant.
C. E. Luckey, U. S. Atty., Victor E. Harr, Asst. U. S. Atty., Portland, Or., George C. Doub, Melvin Richter, Bernard Cedarbaum, Washington, D. C., for appellee.
Before HEALY, CHAMBERS and BARNES, Circuit Judges.
BARNES, Circuit Judge.
Appellee, F. C. Hathaway, brought this action in the District Court under the Tucker Act to recover $10,000 in damages from the United States for alleged breach of a contract of sale, as modified, and to have the contract reformed by reducing the purchase price by one-half. The United States denied breach; challenged plaintiff’s right to “reformation” and counterclaimed for the unpaid balance due on the contract. The District Court granted plaintiff’s prayer for a fifty percent reduction of the purchase price and entered judgment accordingly. The Government here appeals from both the judgment in favor of plaintiff, and the denial of its counterclaim.
An invitation to bid on the property involved in this controversy was issued by the United States Army Corps of Engineers on March 3, 1952. The bid of plaintiff was received March 20, 1952, and accepted on that same date. The contract called for the sale to plaintiff of four sets of steel lock gates, each of two leaves, located at Cascade Locks, Oregon. These gates were situated below the level of the waters of the lake . , , -o t. ™ formed by Bonneville Dam. The esti- . , , „ . mated gross tonnage of.the steel con- , . , 7 .7 ., Xamed “ i +nS' Plaintiff’s bid of $7500 for the entire lot was high. In accordance with the terms of the bid invitation, plaintiff paid a bid deposit of $1500. The balance was required to be paid prior to December 1, 1952 or prior to the removal of any prop- ,
Plaintiff commenced salvage operations in the fall of 1952. Manpower and high water difficulties forced him to discontinue operations before any steel had been removed. The Government concedly acquiesced in this delay.
During this period plaintiff and the Contracting Officer, L. W. Bixby, entered into a purported modification of the contract whereby plaintiff would be permitted to remove salvaged steel before paying for it. The Government has steadfastiy denied Bixby’s authority to modify the agreement. The legal efficacy of the modification is not relevant to any issue tendered by this appeal or the decision below.
_ t Ia If 3 Plaintiff dld m^age to remove to the banks of the old canal the two lock gate from the upper end of the canal, containing approxxmately 517 tons of j fhen the salvage operations shlfted *° the two fets £ locks ¿«covered that one lock (the upper the lo™er two) was sfunf’ af that this condition, combined with the daPth of the locks and the accumulated silt and debris, made the removal of ad- . , ’ ... „ ... , ditional steel economically unfeasible and .. . ,. . ,. . too perilous for diving operations. Work on the locks was then terminated.
mi ^ ^ „ . Thereafter, the Corps of ■ Engineers a*?am extended the time for payment of purchase pnce and the removal of the 5}7j}ons steel wblf bad bf n sal( vaSed from tha canal banks wh^e.^ was placed, to January 4, 1954. Plaintiff tendered no further payment and made no effort to remove the steel. The Government then elected to exercise its contractual right to sell the salvaged steel which it did do for the sum of $4,-387.98. This money was credited to plaintiff’s account. Less than one month later, following the last of a series of unsuccessful attempts to obtain a modification of the agreement, plaintiff instituted this action.
The court below found that the parties were mutually mistaken as to the amount of steel which it was practicably possible to remove from the old Cascade Locks; and that only one-half of the amount which the parties contemplated could be removed was in fact practicably possible of removal. Accordingly, it halved the purchase price and awarded judgment for plaintiff for $2,137.98. This figure represents the aggregate sum of the bid deposit and the amount received for the 517 tons of steel sold by the Government, $5,887.98, minus the reduced contract price of $3750.
The evidence is sufficient to support a finding that neither party was fully cognizant of the true condition of the lower two sets of locks when they entered into the agreement. In this limited sense it may be said that the parties were mutually mistaken as to a material factor affecting the amount of removable steel. But such a determination does not conclude the question. Mutual mistake renders a sales contract voidable only if the parties have not agreed among themselves that the risk of such mistake shall be assumed by the purchaser. It cannot be doubted that the parties can control the matter by agreement. A party to a contract may assume the risk of every chance occurrence. The decisive inquiry then is how the burden attendant to this misconception should be allocated in light of the terms of the written agreement and the surrounding circumstances. More specifically, did one of the parties assume the risk of such error ?
The general sales terms and conditions of the contract provided:
“2. Conditions of Property — All property listed herein is offered for sale ‘as is’ and ‘where is,’ and without recourse against the Government. * * * The description is based on the best available information, but the Government makes no guaranty, warranty, or representation expressed or implied, as to quantity, kind, character, quality, weight, size, or description of any of the property; or its fitness for any use or purpose, and no claim will be considered for allowance or adjustment or for rescission of the sale based upon failure of the property to correspond with the standard expected; this is not a sale by sample.”
The Special Conditions in the contract read as follows:
“Property is sold ‘as is, where is’. In subsequent disposal by the contractor of any scrap purchased hereunder, disposal of such scrap shall be subject to allocation by the National Production Authority, U. S. Department of Commerce, or other comparable Government Agency, in conformance with existing law.
“Attached hereto is print covering recent hydrographic survey of the old locks showing approximate height of water, approximate positions of various gates and silting condition at bottom of locks.
“Interested bidders may examine print showing design of gates and manner in which they are secured to lock walls by applying at 678 Pittock Block.”
The Government was not in the business of selling steel, and did not intend to enter it. In effect the Government told prospective purchasers that it had a quantity of surplus steel for sale; that it simply desired to dispose of this surplus; but that it did not want to accept responsibility for the inherent risks involved in an operation of this magnitude. Therefore, it proposed to sell the entire lot of steel regardless of amount, condition or location, on an “as is, where is” basis. Recourse against the Government was explicitly negatived.
Prospective buyers were informed that the locks were located beneath the water surface. They were urged to inspect the locks before bidding and admonished by the express language of the contract that the Government would not bear the responsibility of failure to inspect. Ample opportunity was afforded for this purpose.
As stated in Restatement of Contracts, § 288, Comment b,
“Since it is possible for a party to a contract to assume the risk of every chance occurrence, a fair interpretation of a contract may indicate an intention to be bound to perform or to pay damages for nonperformance whatever contingencies may occur.”
That is precisely the situation presented by the instant case. One can hardly envisage contractual terms which could more clearly impose on the'purchaser the risk of loss resulting from such contingencies as here occurred. This was the very essence of the bid invitation. The Government’s manifested intention was to shift the burden of responsibility for any fortuitous conditions which might arise upon the bidder. There can be no other interpretation given the plain and unequivocal terms of the bid invitation.
A fundamental rule of construction is that a court must give effect to every word or term employed by the parties and reject none as meaningless or surplusage in arriving at the intention of the contracting parties. Bankers Life Co. v. International T. & T. Corp., 7 Cir., 239 F.2d 621; Shell Oil Co. v. Dye, 7 Cir., 135 F.2d 365. The decisions have applied this rule to the Government’s “as is, where is” contracts. Maguire & Co., v. United States, 273 U.S. 67, 47 S.Ct. 274, 71 L.Ed. 540; Lipshitz & Cohen v. United States, 269 U.S. 90, 46 S.Ct. 45, 70 L.Ed. 175; United States v. Silverton, 1 Cir., 200 F.2d 824; American Elastics, Inc., v. United, States, 2 Cir., 187 F.2d 109.
Plaintiff does not now, nor has he ever maintained, that the agreement is or was unclear, or that he misunderstood the meaning thereof. If plaintiff entertained compunctions about entering into contractual relations on this basis; if he had any doubts or qualms concerning the practicability of salvaging the steel; such considerations should have been weighed and determined before reaching the decision to bid. He could have taken precautions to moderate the risks, but he did not. He made no inspection before submitting his bid. This, despite the fact that he was totally inexperienced in marine salvage operations.
Nor does plaintiff question the validity of the exculpatory clauses. There is no evidence of fraud, overbearing, superior knowledge or such unfairness as to make this agreement voidable. The Government made no representation respecting the amount of removable steel. The figure 985.3 gross tons was an estimation, not a representation. “The naming of quantities cannot be regarded as in the nature of a warranty, but merely as an estimate of the probable amounts in reference to which good faith only could be required of the party making it.” Lipshitz & Cohen v. United States, supra, 269 U.S. at page 92, 46 S.Ct. at page 46; Maguire & Co. v. United States, supra, 273 U.S. at page 69, 47 S.Ct. at page 274. Moreover, it is admitted that the estimate was substantially accurate as to the amount of steel actually contained in the lock gates.
On oral argument counsel for plaintiff laid particular emphasis on the contents of a hydrographic chart which accompanied the bid invitation. This chart showed the approximate height of the water, approximate positions of the various gates and estimated silting condition at the bottom of the locks. It was composed (as is clearly stated on the chart) from lead-line soundings. The primary purpose of such a survey is to check the depth of underwater installations and obstructions. Accordingly, no sub-surface investigation other than the lead-line soundings was undertaken in the preparation of this data. When completed, the chart did not indicate that the lower gates were sprung and silted over. This is not surprising in view of the limited nature of the survey. However, plaintiff cannot rely on the omission. Not only does the express statement of the limited nature of the survey, contained therein, and the Government’s express disavowal of any representation in the bid invitation (Condition 2, supra) preclude such reliance, but so also does plaintiff’s own failure to inspect, either below or above the water line. Moreover, plaintiff’s expert witness, Lewis Smith, who conducted diving operations for plaintiff, testified that the chart was substantially correct and that the chart accurately reflected the silting condition.
Although the overwhelming majority of cases having to do with “as is, where is” contracts concern the dismissal of actions for breach of contract or warranty, there is one decision directly in point. In American Elastics, Inc., v. United States, supra, the plaintiff sued to rescind a contract for the sale of surplus elastic webbing material and to recover the purchase price which he had paid. The action was grounded on mutual mistake. The alleged mistake was that the delivered material was soiled. The Second Circuit, in denying rescission, held that the “as is” terms of the agreement barred an action on this theory. We agree. And if the contract cannot be rescinded, the Government is entitled to enforce it.
Plaintiff bought on a “grab bag” basis. The very term “as is, where is” tells the buyer to beware — to investigate. Plaintiff was aware that risks existed. He ventured and lost. His bargain was bad. However, the law provides no remedy for bad bargains willingly risked with wide opened eyes.
The determination that plaintiff assumed the risk of the conditions which impaired the removability of all the steel answers not only the question as to his rights but also the matter of his duties. Just as the vicissitude of the sprung lock and the accumulated silt does not bestow any rights in him neither does it absolve him of his obligations. This is not a case of either impossibility or commercial frustration justifying excuse from performance, for plaintiff assumed the risk of the difficulties he encountered. There is no dispute that the unpaid balance due on the contract is $1,612.02. Accordingly, judgment should be entered for this sum on the Government’s counterclaim.
Because of our holding that plaintiff cannot recover, we are not required to reach the question of whether or not the particular relief granted plaintiff by the District Court was proper.
The judgment for plaintiff is reversed and the cause remanded to the District Court with directions to enter judgment for appellant on its counterclaim.
. 28 U.S.C.A. § 1846.
. Although the complaint sought “reformation,” it is obvious that this is not a proper case for “reformation,” as that term is known in the law of contracts. Reformation of a written instrument will be ordered only where the writing does not accurately express the agreement assented to by the parties. It is used to conform the writing to the true agreement. 3 Corbin, Contracts, § 614; 5 Williston, Contracts, § 1547. Here, it is not disputed that the written contract correctly states the agreement of the parties.
„ . , . 3. The trial court made no specific finding on plaintiff s claim for breach of contract. Both parties have construed this silence as a rejection of the claim.
. The trial court’s implied denial of the claim for breach which claim was predicated on this purported modification of the agreement obviates the necessity for consideration of the matter by this Court.
. The contract provided that, “If the successful bidder fails to make full and final payment as herein provided, the Government reserves the right, upon written notice to the successful bidder, to sell or otherwise dispose of any or all of such property in the Government’s possession and to charge the loss, if any, to the account of defaulting bidder.” The Government properly notified plaintiff by mail of its intention to sell the salvaged steel.
. Restatement of Contracts, §§ 456, 502, Comment f; Corbin, Contracts, §§ 598, 1354.
. Lipshitz & Cohen v. United States, 269 U.S. 90, 46 S.Ct. 45, 70 L.Ed. 175; American Elastics, Inc., v. United States, 2 Cir., 187 F.2d 109; Sachs Mercantile Co. v. United States, 78 C.Cls. 801; General Textile Corp. v. United States, 76 C.Cls. 442; Yankee Export & Trading Co. v. United States, 72 C.Cls. 258; Silberstein & Son v. United States, 69 C.Cls. 412; Snyder Corp. v. United States, 68 C.Cls. 667; Panama v. United States, 63 C.Cls. 283; Triad Corp. v. United States, 63 C.Cls. 151. See also, De La Rama S.S. Co. v. Ellis, 9 Cir., 149 F.2d 61, and, Triple “A” Machine Shop, Inc., v. United States, 9 Cir., 235 F.2d 626.
. Day v. United States, 245 U.S. 159, 38 S.Ct. 57, 62 L.Ed. 219; Restatement of Contracts, § 288, Comment b.
. Condition 1. of Contract:
“1. Inspection. — Bidders are invited and urged to inspect the property to be sold prior to submitting bids. Property will be available for inspection at the places and times specified in the Invitation. The Government will not be obliged to furnish any labor for such purpose. In no case will failure to inspect constitute grounds for a claim or for the withdrawal of a bid after opening.”
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In re MORALES TRAVEL AGENCY, Bankrupt. Appeal of EASTERN AIR LINES, INC.
No. 80-1225.
United States Court of Appeals, First Circuit.
Argued Oct. 6, 1980.
Decided Jan. 7, 1981.
As Amended on Denial of Rehearing March 2, 1981.
Lawrence E. Duffy, Rio Piedras, P.R., with whom Francisco Ponsa Feliu, Francisco Ponsa Flores, San Juan, P.R., and Edda Ponsa Flores, Rio Piedras, P.R., were on brief, for appellant.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
LEVIN H. CAMPBELL, Circuit Judge.
Eastern Air Lines appeals from the district court’s affirmance of an order of the bankruptcy court denying Eastern’s petition to recover certain money in the possession of defendant’s trustee in bankruptcy. We affirm.
Morales Travel Agency, Inc. was in the business of selling to the public tickets for passage on various airlines, including Eastern. The business was run by Jose E. Morales Padilla, its sole stockholder, president, and treasurer. The relationship between Morales Travel Agency and the airlines was governed by the International Air Transport Association (IATA) Passenger Sales Agency Agreement, and by Resolutions of IATA under that agreement. Resolution 820(a) provided that the airlines would provide Morales (and other travel agencies) with blank tickets, or “travel documents,” which were to remain the property of the airlines until sold to passengers. The Resolution provided that, upon the sale of a ticket, Morales became responsible to pay the airline the price of the ticket, whether it actually collected that amount or not. Under the resolution, whatever money Morales did collect “shall be the property of the Carrier and shall be held by the Agent in trust for the Carrier or on behalf of the Carrier, until satisfactorily accounted for to the Carrier and settlement made.” The IATA Resolutions did not, however, require that Morales keep the proceeds of each airline’s ticket sales in separate accounts, nor that it keep the proceeds of all ticket sales in an account separate from any other business or personal funds. It was apparently Morales’ practice to commingle funds, from whatever source, in a single account. The IATA Resolutions also did not include any restrictions on the agent’s use of the ticket proceeds while in the agent’s possession. It appears that Jose Morales and his associates diverted some funds of the business, including ticket proceeds, to their personal use. Under IATA’s Resolution 810(a), the agent was required to furnish each airline with sales reports twice each month. At the time of each sales report, Morales was to remit to the airline the amount of the tickets sold during that sales period, less its commission.
Morales Travel Agency was adjudicated bankrupt in August 1978. At that time, Morales’ possessions amounted to $356,314, consisting of $258,473 in accounts receivable, $57,241 in cash, and the rest in office equipment, an automobile, and a very small amount of real property. Its debts, including the claim in question here, totalled $631,346.27. That amount included no secured claims, and only one claim having priority, a $1,500 debt for rent. The great majority of the claims were for airline tickets sold; by far the largest of these was Eastern’s claim for $379,482.29. The non-airline claims included $48,500 in bank loans for operation of the business, amounts ranging from $45 to $4,000 for various goods and services, and two judgment claims of $5,750 and $1,217.
In September 1978, Eastern brought this action in the bankruptcy court, seeking to recover from the trustee in bankruptcy the $379,482.29 which Morales owed it for the sale of its airline tickets. Eastern argued that, under the terms of the IATA Agreement, the proceeds of its tickets were its property, held in trust by Morales, and were not part of the estate in bankruptcy. A trial was held in July 1979, and on October 15, 1979, the bankruptcy court issued judgment against Eastern and allowed Eastern an unsecured claim without priority in the amount of $379,482.29.
Eastern then appealed to the United States District Court for the District of Puerto Rico, which at first affirmed the bankruptcy court on the ground that the relationship between Eastern and Morales was actually one of creditor and debtor, rather than one of trust, despite the language of the IATA Agreement, which the court found to be intended merely to ensure the debtor’s performance of its obligation. Upon Eastern’s motion for reconsideration, the district court revised its opinion to find that the contract did create a trust, but reached the same result on the ground that Eastern had failed to trace the trust funds into “specific or identifiable property” in the possession of the trustee. Eastern then brought this appeal.
Under section 70(a) of the Bankruptcy Act of 1898, which applies to Morales’ petition in bankruptcy, the trustee in bankruptcy acquired whatever title to property the bankrupt had. In the case of property held by the bankrupt in trust for another, the trustee would acquire the property subject to the interests of the trust beneficiary. 4A Collier, Bankruptcy ¶ 70.25[1], at 339 (14th ed. 1964). The burden, however, is on the claimant to establish the existence of a trust and to identify the property held in trust. 4A Collier ¶ 70.25, at 350, 354. Therefore, to prevail Eastern must show first that the proceeds of Morales’ sales of Eastern’s tickets were impressed with a trust in favor of Eastern, and second, that those proceeds still exist in identifiable form among Morales’ possessions. Eastern has failed at both these tasks.
The terms of the IATA Agreement and Resolutions were inadequate, in our view, to give rise to a trust upon the proceeds from tickets sold by Morales to its customers. To be sure, Resolution 820(a) recited, in general terms, that the agent was to hold whatever monies it collected in trust for the carrier until accounted for, and that these monies were the carrier’s property until settlement occurred. However, talismanic language could not throw a protective mantle over these receipts in the absence of a genuine trust mechanism. Here the relationship remained in practical fact that of debtor-creditor. The contract nowhere required Morales to keep the proceeds of Eastern’s ticket sales separate from any other funds, whether Morales’ own funds or the proceeds of other airlines’ ticket sales. Nor was any specific restriction placed upon Morales’ use of the supposed trust funds. Morales was left free to use what it received for its own benefit rather than Eastern’s, and to transform the receipts into assets with no apparent encumbrance, upon which potential creditors might rely. The use of the word “trust” and the designation of the airline as titleholder, in a contract which is not publicly filed, would not save potential creditors from relying on such assets as office equipment, accounts receivable, and a bank account solely in the name of the agency. In the absence of any provision requiring Morales to hold the funds in trust by keeping them separate, and otherwise restricting their use, the label “trust” could in these circumstances and for present purposes have no legal effect. See In re Penn. Central Transportation Co., 328 F.Supp. 1278 (E.D.Pa.1971); Scott on Trusts § 12.2 (3d ed.).
Our conclusion is buttressed by other terms of the agreement. Morales’ contractual responsibility to a carrier went beyond transmitting the funds actually received, to paying the price of tickets sold whether it received that amount or not. Morales, moreover, was required to transmit the proceeds not upon receipt, nor even upon demand, but at specified regular intervals. Thus for everyday purposes the relationship was the conventional one of debtor-creditor — the “trust” was a draftsman’s concept, designed to rescue Eastern in a situation such as the present but otherwise to be ignored.
We find this case to be very similar to the case of Lord’s, Inc. v. Maley, 356 F.2d 456 (7th Cir. 1966), in which the Seventh Circuit affirmed the bankruptcy court’s denial of a reclamation petition by the lessee of space in the bankrupt’s department store who sought to reclaim funds collected by the bankrupt through the sale of the lessee’s goods. Despite express language in the contract purporting to create a trust relationship, the court relied on such factors as the bankrupt’s freedom to use the funds between settlement dates and to commingle them with its own funds, to find a debtor-creditor relationship. The Lord’s case was followed by the Tenth Circuit in Carlson, Inc. v. Commercial Discount Corp., 382 F.2d 903 (1967). See also In the Matter of the Yaeger Co., Mendel v. Whitmer, 315 F.2d 864 (6th Cir. 1963); In re Martin’s, 11 F.Supp. 99 (E.D.N.Y.1935).
Harvey Brokerage Co. v. Ambassador Hotel Corp., 57 F.2d 727 (S.D.N.Y.1932), which Eastern cites to support its argument for a trust, actually supports our conclusion. In that case involving bankruptcy, the court presumed that a trust relationship existed where the bankrupt collected debts on behalf of another; but the court observed that the presumption could be rebutted by a showing of circumstances in the relationship inconsistent with a trust, such as the bankrupt’s right to use the funds and commingle them with its own.
The conclusion we reach is not shaken by Eastern’s citation of Article 1233 of the Civil Code of Puerto Rico, Title 31 L.P. R.A. 3471, which requires that the literal sense of a contract be observed where the terms of the contract are clear and leave no doubt as to the intention of the parties. Article 1233 is similar to the prevalent common law rule. See, e. g. 3 Corbin, Contracts § 573, on the Parol Evidence Rule. Neither Puerto Rico’s Code provision nor the common law rule, however, make the effect of a contract dependent solely upon the parties’ legal labels, nor do they relieve a court from the duty to examine the contract as a whole. 3 Corbin, Contracts § 549. Moreover, the principle embodied in Article 1233 has little to do with the problem at hand. Article 1233 relates to whether the parties’ intent is to be sought within or without the language of an agreement, whereas the present problem is to determine, in a bankruptcy setting where third-party interests are very much at stake, the legal consequences that flow from a prior contractual arrangement. If a ritualistic incantation of trust language were deemed conclusive, it would be a simple matter for one creditor, at the expense of others, to circumvent the rules pertaining to the creation of bona fide security interests.
Nor are we persuaded by Eastern’s citation of three lower state court cases involving travel agency contracts. In Air Traffic v. Downtown Travel Center, 87 Misc.2d 151, 383 N.Y.S.2d 805 (N.Y. Supreme Ct. 1976), and Pan American v. Lev Art Travel, an unpublished California case described in Air Traffic, the contracts required the agencies to keep the proceeds of ticket sales in separate accounts. As we have indicated supra, such a requirement, whether in practice met or not, would go some distance toward establishing a legally effective trust, although we do not here consider whether such a requirement would by itself accomplish this for bankruptcy purposes. Rappa v. American Airlines, 87 Misc.2d 759, 386 N.Y.S.2d 612 (Civil Ct. of the City of New York 1976), appears to involve a like contract with the same separate account requirement. Furthermore, that case decided only that the airline was liable to refund the amount of a ticket to the purchaser despite the agent’s insolvency. The court there did cite Air Traffic’s reference to a trust relationship between the airline and the agent, but the result in Rappa follows from the contractual provisions of the ticket itself, regardless of the relationship between airline and agent.
We need not conclusively rule that the relation here is, for all purposes, one of debtor/creditor, however, for our holding would be the same even were we to find that the relation was intended to be one of principal/agent or consignor/consignee. In either such relationship, a principal or consignor who allows property to appear that of the agent’s or consignee’s estate will in the event of the latter’s bankruptcy be es-topped from recovering that property from the trustee, see 3 Remington on Bankruptcy § 1212.02, at 52-53 (Henderson ed. 1957), and cases cited therein; cf. 4 Collier on Bankruptcy § 541.08(2), at 541-39 (15th ed.); 4A Collier on Bankruptcy § 70.18, at 202 (14th ed.), and Eastern’s failure to require segregation or restricted use of its funds has clearly served to create such an appearance here. Of course, no other questions relating to the nature of the airline/travel agency relationship are before us in this case, and our opinion intimates no view as to any such question. Because of our conclusion on this issue, it is not strictly necessary to consider the question of tracing. We discuss the matter, however, because the impossibility of, tracing in this case demonstrates the injustice that would result from allowing Eastern to recover.
Eastern cites several cases involving consignment arrangements in which the consignor was permitted to retrieve its property upon bankruptcy of the consignee. None of these cases is helpful to Eastern here, since in each case the consigned goods were readily identifiable. See, e. g., Ludvigh v. American Woolen, 231 U.S. 522, 34 S.Ct. 161, 58 L.Ed. 345 (1913); In re DIA Sales Corp., Ray v. Maguire, 339 F.2d 175 (6th Cir. 1964); Fowler v. Pennsylvania Tire, 326 F.2d 526 (5th Cir. 1964). Where the consigned goods have been sold, the consignor has been allowed to recover the proceeds only where they could be traced. See, e. g., In re Midwest Gas, 174 F.Supp. 618 (W.D.Mo.1959).
Eastern argues that the requirement of tracing does not apply here because the proceeds of its tickets could not have been commingled with Morales’ own funds, since Morales had no income other than the proceeds of ticket sales. This argument seems to be directed toward excluding non-airline creditors from any distribution of Morales’ assets. We reject both the factual premise and the legal conclusion.
It appears to be true that Morales’ business consisted entirely of ticket sales, the proceeds of which would, if we were to give effect to the “trust” language of the IATA Agreement, all belong to the airlines until the time of settlement. But it does not follow that all of Morales’ assets derive from the proceeds of ticket sales. The claims against Morales’ estate demonstrate that Morales received some $48,500 in bank loans, as well as $1,250 worth of office materials bought on credit. In addition, Morales must have retained a commission on each past occasion when it settled the account with an airline. We have no reason to believe that Morales’ current assets do not derive at least in part from these sources, which have been commingled with the proceeds of ticket sales. Furthermore, although commingling usually does refer to a mixing with the debtor’s own funds, the doctrine of tracing requires the claimant to identify the property he seeks as his own, not just to exclude the possibility that it belongs to the debtor. See generally Sonnenschein v. Reliance Insurance Co., 353 F.2d 935 (2d Cir. 1965); Gulf Petroleum S.A. v. Collazo, 316 F.2d 257 (1st Cir. 1963); 4A Collier, Bankruptcy ¶ 70.25[2], at 354 (14th ed. 1964). Eastern is unable to do so here. The non-airline creditors, as well as the other airlines, are therefore entitled to receive their fair share of Morales’ assets through distribution in bankruptcy.
Affirmed.
. The summary of property lists $100 in real property.
. The bankruptcy court awarded judgment for Eastern in the amount of $9,700.99, representing the proceeds of ticket sales made since filing of the petition for bankruptcy. That judgment is not challenged here.
. In this court, the trustee in bankruptcy waived his right to file a brief and to participate in oral argument.
. As the district court observed initially, the trust language may be viewed as an effort to créate a security interest in the ticket proceeds for the benefit of the airlines. Since Eastern has not asserted any claim to a security interest as such, we need not consider whether this contract could, under Puerto Rico law, be effective in the creation of such an interest. Quite possibly, although we do not purport to rule, Puerto Rico law may prohibit security interests in such property as the proceeds of future sales. See P.R.Code Ann. Title 30 §§ 204(1) and (5). The IATA Agreement makes applicable the law of the principal place of business of the agent.
. Our knowledge of the unpublished Pan American case derives solely from the discussion of it in the Air Traffic decision.
. Neither of these cases involved bankruptcy of the travel agency.
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_genresp2
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
ACKER v. GIRARD TRUST CO. et al.
No. 4335.
Circuit Court of Appeals, Third Circuit.
June 30, 1930.
Thomas F. Gain, of Philadelphia, Pa., H. C. Reynolds, H. M. Streeter, John P. Kelly, and Reese H. Harris, all of Scranton, Pa., and Francis Shunk Brown, of Philadelphia, Pa., for appellant.
Thomas Reath Jr., and Dickson, Beitler & McCouch, all of Philadelphia, Pa., for appellee Buchanan.
Charles Myers and Barnes Biddle & Myers, all of Philadelphia, Pa., for appellee Girard Trust Co.
Before BUFFINGTON and DAVIS, Circuit Judges, and AVIS, District Judge.
BUFFINGTON, Circuit Judge.
On October 3, 1927, the court below, on a bill filed that day, duly appointed receivers for the South Penn Collieries Company, an insolvent corporation of the state of Delaware.
On the same day the Girard Trust Company, trustee under a second mortgage of said company, was, on its petition, allowed to intervene.
On October 27, 1927, Franklin Spencer Edmonds was appointed a master “to take evidence and report the same with his findings thereon, upon the following matters; * * * (h) the amounts of the claims of creditors of the defendant, South Penn Collieries Company, other than the holders of first and second mortgage bonds.”
On January 23, 1928, Warren T. Acker, the present appellant, filed a petition which so far as here pertinent represented that he owned all the stock of the Von Storch Collieries Company, which had valuable coal property in fee, and that he had sold to the South Penn Collieries Company all such capital stock, receiving in pay therefor two millions in cash and certain capital stock of the buying company. He further stated that part of the consideration was that the latter agreed to employ him as manager for five years and “that if at any time the company should desire to retire him as manager, it should pay to him the sum of $500,000, and your petitioner was then to transfer to the company his said five per cent, of the common stock,” to wit, $500,000 of stock. He further averred that his contract with the company “was a closed contract as to prior liens which might dilute or jeopardize the value of your petitioner’s stock representing the balance of the purchase price for his said valuable properties.” He further alleged that the buying company had later by “repeated and continued interferences and violations of the said contract and the usurpation of his rights, and powers was such as to deprive him of all power and authority as general manager and, in the language of the contract, to ‘retire’ him as general manager.” He further alleged that the buying company had, in violation of its contract with petitioner, given to the Girard Trust Company the second mortgage upon its property for $2,000,000, which said trustee was now seeking to foreclose, which foreclosure “would result in wiping out your petitioner’s contract and the payment to him of $500,000, the balance of the purchase price for his said coal property and which is owing to him because of violations of his contract as aforesaid.”
As here pertinent the petition prayed:
“7. That the Special Master appointed by the Court be authorized and directed to-hear and determine the various rights and questions involved in the claim of Warren T. Acker against the South Penn Collieries Company arising from or affecting his contracts with said company and any violations thereof, and also any acts or things showing any conspiracy or fraudulent or unlawful confederacy or action on the part of directors or officers of said company affecting his rights under said contracts, or to bring about the appointment of a receiver, or the foreclosure of the second mortgage on the property of said company, and also to determine whether said mortgage and bonds thereunder have priority, and to what extent, if any, over the claim of the said Warren T. Acker.”
On February 7, 1928, the court referred Acker’s claim to the master already appointed and directed him.—
“To hear evidence and report his findings and conclusions to the Court upon the following matters in addition to the matters heretofore referred to him:
“1. What amount, if any, is due and owing by the South Penn Collieries Company to Warren T. Acker under or by virtue of his contracts with said company, and the lien of priority, if any, to which such claim may be entitled.
“2. All relevant matters affecting the validity, lien and priority of the mortgage of $2,000,000 made by the South Penn Collieries Company to the Girard Trust Company, trustee, under date of January 1, 1926.”
Much testimony was taken, and on June 13, 1929, the master filed his report; the pertinent findings of fact and conclusions of law therein are later stated.
To such report Acker filed exceptions which were heard by the court below, and on August 21, 1929, were dismissed and the report confirmed. Thereupon this appeal was taken by him.
Without referring to the many questions decided by the master, we limit ourselves to stating and discussing the two questions involved which are stated in appellant’s brief, namely:
“Whether the second mortgage constituted a violation of the contract between the defendant company and the intervening creditor, and whether it may be enforced as a valid lien against the property of the Company in priority to the amount due such creditor.
“Whether the amount found by the Court to be owing to the intervening creditor must be postponed in payment until after the payment of all other creditors.”
Referring first to the question of the validity of the Girard Trust Company mortgage and its priority over general creditors, we note the master held: “That the evidence clearly establishes the fact that the second mortgage was created, and that the bonds thereunder were issued, in entire good faith. The circumstances attending the creation of this mortgage and the issuance of the bonds have been fully set forth above. The defendant company was badly in need of additional capital. Its financial condition was such that it could not procure loans from banks, and the creation of the second mortgage and the issuance of bonds thereunder was certainly the most feasible, if not the only way by which the defendant company could have procured the needed capital.” A study of the proofs satisfies us the finding of the master in this regard involved no error.
He further held the creation of such mortgage was not a violation of the buying company’s contract with Aeker, and we agree with the court below that no error was committed by the master in decreeing priority of said mortgage over general creditors.
We may here state that as to Acker’s allegation that he was wrongfully retired by the buying company, the master found as follows: sponsibility, "as to constitute a retirement of Aeker as general manager of the Von Storeh and Legitts Creek properties as of February 5, 1926, within the meaning of the third section of the contract of November 6, 1924.”
“On this question, the Special Master is of the opinion that the conduct of the defendant’s officers and representatives during the period from November 6, 1924 to February 5, 1926, culminating in the removal of Acker’s offices from the collieries to the Bowman Building in Scranton, some two miles away, was such a usurpation and diminution of Acker’s duties, authority and re-
In the event of such retirement, the third section of the contract provided,
“And if the Vendee should retire the said Warren T. Acker, as General Manager of the combined Companies, within the period of five years, all of said common stock shall be assigned to the Vendee or its nominee, whereupon the said Five Hundred Thousand Dollars ($500,600) shall be paid to the said Warren T. Acker by the Vendee for all of the stock, to wit, one-twentieth (l-20th) of the whole stock, and thereupon assignment thereof as hereinabove provided shall be made to the Vendee or its nominee.”
On this branch of the ease the master reported as follows:
“As has been pointed out, it was agreed in the third section of the contract of November 6, 1924, that the defendant company would employ Acker, who agreed to serve, as general manager of the Von Storch and Legitts Creek properties for a period of five years. It was further provided that if at any time during this period, the defendant should desire to retire Acker as such general manager, it should pay to Acker, at his election, the sum of $500,000', for his shares of stock in the defendant company, whereupon ACker was to assign said shares of stock to the defendant or its nominee.
“Clearly this provision of the contract did not require the defendant company to retain Acker in its employment for the period of five years. On the contrary, its right to retire Acker was conceded, subject only to the provision that if it did retire him within the five year period, then if Acker so elected, the defendant company was required to pay him $500,000 for his stock in the defendant company.
“The Special Master is therefore of the opinion that the defendant company would have been guilty of no breach of contract if it had definitely and directly retired Acker by notifying him that his services would be no longer required. If the defendant company had done this, Acker’s only remedy would have been to insist, if he so elected, that the defendant company pay him $500',-000 for his stock. Since his retirement would not be a breach of contract, Acker would have no claim, for damages on account^thereof.
“Nor has Acker any greater rights because of the fact that he was retired indirectly, as a result of the unfair conduct of the defendant’s officers and representatives. Legally, this conduct, however reprehensible, was just the equivalent of an open, straightforward, definite retirement, and gave Acker just the same rights. The Special Master is of the opinion, therefore, that Acker’s only remedy for his retirement, however accomplished, was his right to insist that the defendant company pay him $500,000, for his stock.”
It remains to consider the remaining question involved, namely, whether, as provided in the decree below, Acker’s claim “is to be deferred to the prior payment of the claims of all other creditors of the defendant company.”
We are of opinion no error was committed in such decree. In reality the relief Acker seeks is to compel the buying company to buy its own stock at the expense of its creditors. The company has no surplus, and therefore, as a Delaware corporation, its powers are fixed by the laws of that state (Rev. Code Del. 1915, § 1933), which provide that:
“Every corporation organized under this Chapter shall have the power to purchase, hold, sell and transfer shares of its own capital stock: Provided that no such corporation shall use its funds or property for the purchase of its own shares of capital stock when such use would cause any impairment of the capital of the corporation.”
Construing such statute, the Court of Chancery of Delaware held, in Re International Radiator Company, 10 Del. Ch. 358, 92 A. 255, such stock purchases could only be made out of a corporation’s surplus.
Moreover, this court, in West Penn Chemical & Manufacturing Company v. Prentice, 236 F. 891, 894, said:
“We think it our duty to follow this decision upon the construction and effect of the Delaware statute, and we find it a controlling authority in the present case.”
Acker’s contract for exchange being unenforceable because he could not withdraw assets from the treasury of the company, it logically follows he cannot, by indirection and making a claim for damages for the breach of a" nonenforceable contract, withdraw assets in the hands of the court by presenting his contract rights in the guise of damages.
Finding no error in the ease, the decree below is affirmed.
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:
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songer_appel1_1_2
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
HOUSER, Dennis L., and Houser, Natalie A. d/b/a Colonial Theatre Enterprises, Appellants v. FOX THEATRES MANAGEMENT CORP.; Fox, Richard; Fox, Donald; Columbia Pictures Industries, Inc.; Abraham A. Dortheimer; Universal Film Exchanges, Inc.; Ciccotta, Pete; Warner Bros. Distributing Corp.; Carroll, Frank; Avco-Embassy Pictures Corp.; Buena Vista Distributing Co., Inc.; Schwartz, Harvey; Filmways Pictures, Inc.; Twentieth Century-Fox Film Corp.; Korte, Louis; Paramount Pictures Corp.; United Artists Corp.
No. 87-5653.
United States Court of Appeals, Third Circuit.
Argued Feb. 29, 1988.
Decided May 9, 1988.
F. Murray Bryan, McNees, Wallace & Nurick, Harrisburg, Pa., Lewis Bernstein (argued), Lewis Bernstein, P.C., Washington, D.C., for appellants.
Judah I. Labovitz (argued), Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for appellees Fox Theatres Management Corp., Richard Fox and Donald A. Fox.
Dennis R. Suplee (argued), David G. Bat-tis, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellees Columbia Pictures Industries, Inc., Abraham A. Dor-theimer, Universal Film Exchanges, Inc., Pete Ciccotta, Warner Bros. Distributing Corp., Frank Carroll, Avco-Embassy Pictures Corp., Filmways Pictures, Inc., Twentieth Century-Fox Film Corp., Louis Korte, Paramount Pictures Corp., and United Artists Corp.
Before SEITZ, HIGGINBOTHAM and COWEN, Circuit Judges.
OPINION OF THE COURT
COWEN, Circuit Judge.
This appeal arises from an order of the district court granting summary judgment in favor of the defendants. Upon review, we conclude that the plaintiffs failed to present sufficient evidence in support of their claims that defendant Fox willfully monopolized the exhibition of first-run films in violation of section 2, and that Fox conspired separately with the individual distributor defendants in violation of section 1, of the Sherman Act. Therefore, we will affirm the district court’s grant of summary judgment in favor of the defendants.
I.
On any given Saturday night of forty years ago, crowds filled elegant and spacious art deco movie houses in town centers across America to watch such stars as Lauren Bacall and Humphrey Bogart grace the giant silver screen. At that time, Lebanon, Pennsylvania supported five downtown motion picture theaters. Today, reflecting a national trend, the elegant downtown theaters are virtually extinct and have been replaced by smaller modern twin theaters adjacent to suburban shopping centers. By 1983, the greater Lebanon area supported two suburban twin theaters and a drive-in; however, the only operating downtown theater was the State, showing mainly X-rated films. This case arises out of one couple’s attempt to restore the grand old Colonial Theater in downtown Lebanon to its former prominence.
The plaintiffs, Dennis and Natalie Houser, purchased the Colonial Theater in 1979. The Colonial is a large, old elegant theater in excellent condition with modern equipment and facilities located in a well-maintained residential section of downtown Lebanon. For several years prior to the Hous-ers’ acquisition, the Colonial had been operated as a sub-run theater on weekends only. Dennis Houser is an accountant with no prior experience in the motion picture business, except that he had done the books for two prior operators of the Colonial. He acquired the Colonial to pacify an accounting client who had complained about the Housers’ participation in the client’s initial acquisition of the theater. Natalie Houser also had no experience in operating a motion picture theater. The Housers purchased the Colonial for $21,400 in cash and the assumption of $92,000 in outstanding obligations with full knowledge that the theater was losing money, and that it had not made a profit in several years prior to the acquisition. It was the Housers’ intention to re-establish the Colonial as a profitable first-run film theater beginning in May, 1980.
At that time, defendant Fox Theatres Management Corporation, through Richard and Donald Fox (“Fox”), operated two suburban twin theaters located adjacent to shopping centers in the Lebanon area, and a downtown theater. These three Fox Theaters with a total of five screens were the only ones exhibiting first-run films on a full-time basis in the Lebanon area. In December, 1981, Fox closed its downtown theater leaving two suburban twin theaters exhibiting first-run films in Lebanon. These theaters are part of a chain operated by Fox with 81 screens throughout southeastern Pennsylvania, Maryland and Delaware.
In the motion picture industry, each film distributor distributes its pictures in its own way. In this case, most of the distributor defendants have Philadelphia branch offices, run by branch managers, which license films in the Philadelphia exchange territory, including Lebanon. Generally, a branch manager notifies exhibitors in a given area of availability dates for new releases, solicits bids or negotiates licenses directly, and makes any necessary adjustments in agreed-upon rental terms.
The precise pictures and release dates made available to individual theaters is based on such varied factors as the nature of the picture, the distributor’s judgment as to whether a particular film is best suited to initial release in larger cities or to “going wide” in a number of towns at the same time, the length of playing time sought by an exhibitor, and the number of prints of a film that will be available. In the Philadelphia exchange, most pictures are offered first in the Philadelphia, Trenton and Wilmington areas. Occasionally, a picture will also open at the same time in relatively large markets such as Harrisburg or Allentown, and might even open simultaneously in such smaller markets as Lebanon.
Once the availability date of a film is set, exhibitors in an area are invited by the distributor either to submit written bids or to negotiate directly for films that interest them. Film rental fees are based on a percentage of each theater’s weekly gross receipts, or “box office receipts.” Generally, the percentage terms decline from week to week during a film’s run and are dependent on the length of playing time offered. Occasionally, an exhibitor engages in “overbooking,” which is the usual practice of committing to the exhibition of a film when no screen is available. The purpose of overbooking is to have films on reserve in case the anticipated run of an exhibited film has to be cut short because the film bombs. Overbooking can also occur when a successful film is held over beyond its anticipated run. Sometimes an exhibitor will agree to pay a distributor a guaranteed minimum film rental or advance.
A film distributor’s revenues depend directly upon the ability of a theater to attract customers. The decision to license a picture to one theater or another is based on the distributor’s evaluation of the probable box office gross at each theater. Estimating a particular theater’s grossing potential is a complex judgment call, which depends on such varied factors as the location of the theater, its cleanliness, and its history and reputation as a full-time first-run theater. In assessing grossing potential, a theater’s track record regarding past box office receipts and payment history is very important.
Between May, 1980 and September, 1982, the Housers employed four successive booking agents who attempted to book first-run films at the Colonial with varying success. For example, beginning in May, 1980 until the end of that year, the Colonial successfully booked first-run films during 18 of the 34 weeks. The Colonial either exhibited sub-run films or was closed during the remaining 16 weeks. In another period, beginning in January, 1982 through September, 1982, the Colonial exhibited first-run films in 21 of 36 weeks, but was closed for 14 of those weeks. During this same period, Fox exhibited sub-run films on at least one of its screens during 19 of the 36 weeks. At various times, the Hous-ers were taken off service by two film distributors for failure to pay film rentals. Finally, in September, 1982, the Housers closed the Colonial arguing that they were unable to obtain adequate Fall, 1982 bookings; however, the record indicates that they had already succeeded in booking one first-run film and did not vigorously pursue booking other available films.
During this period between May, 1980 and September, 1982, the Housers presented evidence that Fox engaged in overbooking at its theaters on a significant scale. For example, over the 89 week period from January, 1981 until September, 1982, Fox overbooked to some degree during 63 of the 89 weeks. In addition, in the Winter of 1980-81, Richard Fox visited the branch managers of the distributor defendants to tout his theaters and allegedly unfairly disparaged the Colonial’s ability to generate good box office results. Finally, in July, 1981, Donald Fox inaugurated a practice of giving gifts to the distributor defendant’s branch managers.
On July 28, 1983, the Housers brought this antitrust action pursuant to the Clayton Act, 15 U.S.C. § 15, and sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2. They alleged that Fox Theatres monopolized and attempted to monopolize first-run film exhibition in Lebanon, Pennsylvania in violation of section 2 of the Sherman Act. The Housers also claimed that each of the separate distributor defendants conspired individually with Fox to deny the Colonial first-run films in violation of section 1 of the Sherman Act.
After the completion of discovery, all the defendants moved for summary judgment on September 3,1985, and the district court referred the motions to a magistrate on November 20, 1985. On July 3, 1986, the magistrate filed his report recommending that summary judgment be granted in favor of all the defendants. On August 12, 1987, the district court entered an order adopting the report of the magistrate, granting judgment in favor of all the defendants.
II.
In reviewing the district court’s grant of summary judgment in favor of Fox and the distributor defendants, we employ the same test the district court applied under Fed.R.Civ.P. 56. In doing so, we must determine whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there was no genuine issue as to any material fact, and that Fox and the distributor defendants are entitled to a judgment as a matter of law. Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d Cir.1986); Alberta Gas Chemicals Ltd. v. E.I. Du Pont De Nemours and Co., 826 F.2d 1235, 1238-39 (3d Cir.1987); Fed.R.Civ.P. 56(c). Fox and the distributor defendants are not required to refute the affirmative elements of the Housers’ claims; instead, they need only point out the absence or insufficiency of the Housers’ evidence offered in support of those affirmative elements. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Mat-sushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
A.
First, we will address the Housers’ claim that Fox Theatres, through the defendants Richard Fox and Donald Fox, monopolized and attempted to monopolize first-run film exhibition in Lebanon, Pennsylvania in violation of section 2 of the Sherman Act. Section 2 of the Sherman Act states, in relevant part, that “[ejvery person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States ... shall be deemed guilty of a felony....” 15 U.S.C. § 2 (1982). The offense of monopoly under section 2 has two elements: “(1) possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966).
The Housers have presented sufficient evidence in this case to survive Fox’s motion for summary judgment related to the first element of a section 2 monopoly offense. We agree with the finding of both the magistrate and district court that the Housers have established first-run films as the relevant product market and Lebanon, Pennsylvania as the relevant geographic market. The next question is whether Fox possesses monopoly power within the relevant market. Monopoly power is defined as “the power to control prices or exclude competition.” United States v. E.I. Du Pont De Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956). The Supreme Court has held that the existence of such monopoly po’ ,er “ordinarily may be inferred from [a] predominant share of the market.” United States v. Grinnell Corp., 384 U.S. 563, 571, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966). The Housers tendered evidence that Fox controlled between 66% and 71% of the screens exhibiting first-run films in Lebanon between May, 1980 and September, 1982. I App. 123A. Therefore, in light of our obligation to draw all reasonable inferences in favor of the Housers, we infer from Fox’s predominant share of the market that it possessed monopoly power over the exhibition of first-run films in Lebanon during this period.
The more difficult issue is whether the Housers have met their burden of presenting sufficient evidence related to the second element of a section 2 monopoly offense — proof of the “willful acquisition or maintenance” of monopoly power. United States v. Grinnell Corp., 384 U.S. at 570-71, 86 S.Ct. at 1704. The Housers’ central allegations in support of their claim that Fox willfully maintained its monopoly power are: (1) that Fox actively disparaged the Colonial’s box office gross potential to the defendant distributors; (2) that Fox gave excessive gifts to managers of the distributor defendants; and (3) that Fox’s practice of allegedly excessive overbooking was a willful attempt to prevent Colonial from becoming a first-run film theater.
The Housers’ first two claims are without merit. Based on their own affidavits and an affidavit of one of their booking agents, the Housers argue that Richard Fox visited the distributor defendants in December, 1980 and specifically disparaged the Colonial’s grossing potential. Brief of Appellants at 8; I App. 202A-210A. However, the affidavits relied on by the Hous-ers contain inadmissible hearsay, and cannot be considered in the context of a summary judgment motion. Fed.R.Civ.Proc. 56(e) (“supporting and opposing affidavits shall ... set forth such facts as would be admissible in evidence_”). In contrast, Richard Fox testified in a deposition that he confined his conversations with distributors to the general assertion that his theaters were better than the Colonial. XIII App. 4161A-4163A. Even if the Housers’ affidavits were admissible, we agree with the district court that Richard Fox’s conduct was consistent with legitimate competitive conduct.
In addition, the Housers argue that Donald Fox’s practice of giving gifts to the distributor defendants supports their claim that Fox willfully maintained monopoly power. It is undisputed that giving gifts is a common practice in the motion picture distribution industry. VIII App. 2561A-2563A; 2675A-2676A; IX App. 2885A; IX App. 3604A-3606A. In fact, the Housers’ principal booking agent, Gary Feldman, gave gifts to personnel of the distributor defendants. There is also no evidence suggesting that the distributor defendants favored Fox because of the gifts. Therefore, we also agree with the district court’s holding that Fox’s practice of giving gifts does not support an inference of anticompetitive behavior.
Finally, in what they acknowledge is the heart of their willful monopolization case, the Housers argue that Fox overbooked films to prevent them from becoming a first-run film competitor. However, there is ample record evidence indicating that overbooking is a common practice throughout the movie industry. VIII App. 2705A-2706A; XIV App. 4516A-4517A; XX App. 6183A-6184A. Overbooking serves the legitimate competitive purpose of having a film on reserve in case the anticipated run of a film has to be cut short because it bombs; sometimes, overbooking results when a successful film is held over beyond its anticipated run. See I App. 221A; IX App. 2849A; XII App. 3878A. See also Movie 1 & 2 v. United Artists Comm., 681 F.Supp. 654, 659 (N.D.Cal.1987) (adjusting the length of a film’s run is a commonly accepted practice in the movie industry).
The Housers argue that the evidence presented of the existence and extent of Fox’s overbooking is sufficient to support the inference that the purpose of the overbooking was to willfully maintain monopoly power. Brief of Appellants at 21-22. We disagree. First, the extent of Fox’s overbooking is not great enough to support such an inference. For example, according to the Housers’ own calculations, during the 89 week period from January, 1981 until September, 1982, Fox did not overbook at all during 26 of the 89 weeks. Brief of Appellants at 20. In addition, in the context of Sherman Act § 1 conspiracy cases, the Supreme Court has emphasized that “conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986); Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764 (1984). By analogy, we hold that since there is evidence that Fox’s practice of overbooking is consistent with sound business practices and permissible competition in this case, it does not, standing alone, support an inference of willful monopolization. Therefore, we will affirm the district court’s grant of summary judgment in favor of Fox concerning their alleged violation of section 2 of the Sherman Act.
B.
Next, we will address the Housers’ claim that each of the separate distributor defendants conspired individually with Fox to deny the Colonial first-run films in violation of section I of the Sherman Act. Section I of the Sherman Act makes illegal “[e]very contract, combination ... or conspiracy, in restraint of trade or commerce among the several states_” 15 U.S.C. § 1 (1982). In support of their conspiracy claim, the Housers have the burden of presenting direct or circumstantial evidence that reasonably tends to prove the alleged conspirators “had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984) (quoting Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981)). In doing so, the Housers must show “(1) that the defendants acted in contradiction of their economic interests, and (2) that the defendants had a motive to enter into an agreement.” Schoenkopf v. Brown & Williamson Tobacco Corp., 637 F.2d 205, 208 (3d Cir.1980).
The Housers assert that each of the distributor defendants acted contrary to its economic interests by consistently choosing to license films to Fox theaters rather than the Colonial. They argue that “[o]n a purely objective basis, the Colonial was a better theater than any of the five Fox the-aters_” Brief of Appellants at 41. In support of this claim, the Housers point to the Colonial’s large seating capacity, elegant and well-maintained condition, and its location in a nice section of downtown in contrast to the alleged “dark and dingy” quality of the narrow suburban twin theaters and the downtown theater owned by Fox. Brief of Appellants at 5-6. In addition, they cite the testimony of a former Twentieth Century Fox employee who stated that he knew of no reason why a picture would not do as well at the Colonial as at the Fox suburban theaters. XIV App. 4579A-4580A. Therefore, the Housers argue that it was in the economic interest of each distributor to encourage greater exhibitor competition in Lebanon by licensing films to the “superior” Colonial.
As we discussed previously, the decision to license a picture to one theater rather than another is based on a complicated subjective estimation of a theater’s grossing potential. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 162-64, 68 S.Ct. 915, 931-32, 92 L.Ed. 1260 (1948); Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 882-83 (8th Cir.1978). Consequently, courts have consistently recognized that motion picture distributors have broad discretion to make licensing decisions based on their own independent judgments. Paramount Film Distribution Corp. v. Applebaum, 217 F.2d 101, 124 (5th Cir.1954), cert. denied 349 U.S. 961, 75 S.Ct. 892, 99 L.Ed. 1284 (1955); Universal Amusements Co. v. General Cinema Corp., 635 F.Supp. 1505, 1514-16 (S.D.Tex.1985). Such factors as a proven track record of high box office receipts and an unblemished payment history are as important as the seating capacity or aesthetic qualities of a theater when estimating its grossing potential. See Admiral Theatre Corp., 585 F.2d at 885; Universal Amusements Co., 635 F.Supp. at 1517.
It is the Housers’ burden to present sufficient evidence to support their claim that the distributor defendants acted contrary to their economic interests in this case. They “must present evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted independently.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. at 588, 106 S.Ct. at 1357 (quoting Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984)). However, the Housers point to just a few of the many factors that enter into a distributor’s estimate of grossing potential in support of their claim that the Colonial is a better theater than any of the Fox theaters, while ignoring other important factors. For example, both the magistrate and the district court found that the box office receipts for first-run films were consistently higher at the Fox theaters than the Colonial. I App. 29A, 70A-71A. In addition, there is evidence that two of the distributors had problems collecting money from the Housers. X App. 3129A, 3132A-3134A; VII App. 2217A. In light of the broad discretion that must be given to film distributors in making complex licensing decisions, we hold that there is not enough evidence in this record to permit a factfinder to conclude that the distributor defendants acted contrary to their economic interests by licensing films to Fox rather than the Hous-ers.
Even if we were to assume that the defendant distributors acted contrary to their economic interests, the Housers failed to show that the distributor defendants had a motive to conspire individually with Fox. The Housers allege that the defendant distributors were motivated to conspire with Fox because they feared that Fox might use its “circuit power” and refuse to do business with them throughout southeast Pennsylvania, Maryland and Delaware. The only evidence offered in support of this allegation is the inadmissible hearsay related to Richard Fox’s visit to the distributor defendants which cannot be considered by this court, supra p. 13, and the fact that Fox owned 81 screens in three states. We agree with the district court’s finding that the Housers have not presented any evidence that Fox used circuit power to coerce any of the distributor defendants in their licensing decisions. I App. 30A. Therefore, we will affirm the district court’s grant of summary judgment in favor of both Fox and the distributor defendants related to their alleged separate conspiracies in violation of section 1 of the Sherman Act.
C.
Finally, even if the Housers had been successful in substantiating some antitrust violation, they still must present sufficient evidence to support their claim that they suffered antitrust injury. Clayton Act, 15 U.S.C. § 15 (1982); see Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977) (“[pjlaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.” (emphasis in original)). The district court found that such factors as the Colonial’s downtown location, the Housers’ inexperience and indebtedness, and a track record of poor box office receipts and missed payments of rental fees supported a finding that the Housers did not suffer antitrust injury in this case. However, since the Housers failed to meet their burden of presenting sufficient evidence of an antitrust violation, we need not address this issue.
III.
In summary, the Housers failed to present sufficient evidence in support of their claim that Fox willfully monopolized first-run film exhibition in Lebanon, Pennsylvania in violation of section 2 of the Sherman Act. In addition, they failed to present sufficient evidence in support of their claim that the defendant distributors acted contrary to their economic interests, or had a motive to conspire with Fox to restrain trade in violation of section 1 of the Sherman Act. Therefore, we will affirm the order of the district court granting summary judgment in favor of all the defendants.
. In film distribution parlance, "first-run” refers to the first exhibition of a film in a given geographic area. Where a distributor re-releases a film after the passage of time, its first showing on re-release in a given geographic area is also considered a first-run. "Sub-run” refers to the exhibition of a film in a given geographic area after its first-run.
. Following their initial purchase of the Colonial in August, 1979, the Housers continued to operate the theater on a sub-run basis on weekends only. In the winter of 1980, they closed the Colonial completely for two months. After resuming sub-run weekend operations in March, 1980, the Housers began to exhibit first-run pictures on a full-time basis in May, 1980.
. The Key Drive-In located outside downtown Lebanon played both first-run and sub-run movies but was only open from the late spring to early fall. The State Theater located in downtown Lebanon primarily played x-rated films.
.The distributor defendants include the following companies and individuals: Columbia Pictures Industries, Inc. and Abraham A. Dortheimer, its Philadelphia Branch Manager; Universal Film Exchanges, Inc. and Pete Cicotta, its Branch Manager; Warner Brothers Distributing Corporation and Frank Carroll, its Branch Manager; AVCO Embassy Pictures Corp.; Filmways Pictures, Inc.; Twentieth Century-Fox Film Corporation and Louis Korte, its Branch Manager; Paramount Pictures Corporation; and United Artists Corporation. The original complaint also named Buena Vista Distribution Co., Inc. and Harvey Schwartz, its branch manager, as defendants, but the case against them settled after the entry of the magistrate’s report and recommendation.
. A film "bombs” when its box office receipts fall far below the weekly gross receipts anticipated by both the distributor and exhibitor.
. The Housers argue that this period included the "very successful exhibition” of the film "Hangar 18.” Brief of Appellants at 7. However, the record reveals that total daily attendance during the 17-day run of Hangar 18 ranged from just 7 to 255, including a substantial number of children’s admissions at less than half-price, and exceeded 150 adult admissions on only three days. Ill App. at 770A-773A.
. During this period, the Colonial exhibited its most successful film in terms of box office receipts — "The Best Little Whorehouse in Texas." However, because the Housers offered a $20,000 guarantee in an attempt to outbid Fox’s offer of a $15,000 guarantee, the Colonial still lost money on the picture.
. At the time the theatre was closed, the Colonial had already booked ‘The Sword in the Stone" for Christmas exhibition. Dennis Houser has identified five other films which he wanted to exhibit in the fall of 1982, but as to which he was unable to get any response from the distributors. As to at least two of the five, the distributors involved claimed never to have received an offer from the Housers’ booking agent, Gary Feldman. Mr. Houser has acknowledged that he was having serious difficulties with Feld-man’s performance in the summer of 1982. As to a third such film, Mr. Houser acknowledges that Feldman told him that the Colonial’s offer had been rejected, that the distributor had asked for rebids and that Feldman had neglected to submit a rebid. Mr. Houser has identified at least another forty first-run films available for distribution in September, October, November and December, 1982, which had not been awarded in Lebanon as far as he knew on September 10, but as to which he made no inquiry or offer. See I App. 45A.
. The Clayton Act, as amended, provides that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue ...” in federal district court. 15 U.S.C. § 15(a). The Housers initiated this action pursuant to the Clayton Act to recover damages for alleged violations of sections 1 and 2 of the Sherman Act. 15 U.S.C. §§ 1-2.
. Fox argues that the Housers failed to meet their burden of coming forward with evidence confining the geographic market to Lebanon, Pennsylvania. Brief of Appellee Fox at 18 n. 6. We disagree. The record supports the conclusion that patrons of first-run films in Lebanon primarily attend Lebanon theaters. I App. 123A, 153A, 216A. The fact that there is evidence that a minority of customers might travel to Harrisburg, Lancaster or even Philadelphia to attend a picture unavailable in Lebanon is not enough to support Fox’s contention that the relevant geographic market should be expanded to include those cities as a matter of law. See Lansdale v. Philadelphia Electric Co., 692 F.2d 307, 311 (3d Cir.1982) (“definition of the relevant geographic market ... is a question of fact to be determined in the context of each case in acknowledgment of the commercial realities of the industry under consideration.").
. In United States v. Grinnell Corp., the Court held that an 87% share of the relevant market (central station alarm service) constituted monopoly power, 384 U.S. at 571, 86 S.Ct. at 1704, and in American Tobacco Co. v. United States, the Court held that "over two-thirds of the entire domestic field of cigarettes, and ... over 80% of the field of comparable cigarettes" constituted “substantial” monopoly power. 328 U.S. 781, 797, 66 S.Ct. 1125, 1133, 90 L.Ed. 1575 (1946) (cited in Grinnell, 384 U.S. at 571, 86 S.Ct. at 1704).
.Fox argues that evidence in the record of Colonial’s success in exhibiting some first-run films demonstrates that Fox did not have the power to set prices or exclude competition in Lebanon. Brief for Appellees Fox at 18-22. We agree that a genuine issue of material fact exists as to whether Fox has monopoly power over the exhibition of first-run films in Lebanon. However, based on our review of the record, we cannot rule that Fox lacks monopoly power.
. In support of their argument, the Housers' point to the fact that “Fox submitted no affidavits or testimony" which directly refutes their claim that the purpose of Fox’s overbooking was to deny the Colonial first-run films. Brief of Appellants at 20-21. However, Fox is not required to refute the affirmative elements of the Housers’ section 2 monopoly claim; instead, they need only point out the insufficiency of the Housers’ evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Relying on Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), the Housers also argue that summary judgment is inappropriate in this case because Fox’s motives and intent are critical to a section 2 monopoly case. However, while commenting on Poller, the Supreme Court recently emphasized that ”[w]e do not understand Poller ... to hold that a plaintiff may defeat a defendant’s properly supported motion for summary judgment ... without offering any concrete evidence from which a reasonable juror could return a verdict in his favor_ Instead, the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_geniss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Joseph C. SPAGNOLA, Jr. v. William MATHIS, Office of Management and Budget, et al., Appellants. Joseph C. SPAGNOLA v. William MATHIS, et al., Appellants. Joseph C. SPAGNOLA, Jr., Appellant, v. William MATHIS, Office of Management & Budget, et al. Michael E. HUBBARD, Appellant, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Administrator, et al.
Nos. 84-5530, 84-5659, 84-5822 and 85-5145.
United States Court of Appeals, District of Columbia Circuit.
Argued April 29, 1987.
Decided Sept. 30, 1988.
George M. Chuzi, Washington, D.C., for appellant in No. 84-5822.
Peter B. Broida, Washington, D.C., for appellant in No. 85-5145.
Joseph B. Kennedy with whom Thomas M. Devine, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the brief, for amici curiae, The Government Accountability Project and the American Civil Liberties Union of the National Capital Area urging affirmance of the panel decision in No. 84-5822.
Stuart H. Newberger, Asst. U.S. Atty., for appellees in both cases, with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, Asst. U.S. Atty.,* R. Craig Lawrence, Michael L. Martinez and Scott T. Kragie, Asst. U.S. Attys., were on the brief for appellees in No. 85-5145, and with whom Joseph E. diGenova, U.S. Atty.,* Royce C. Lamberth * and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief for appellees in No. 84-5822.
Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellees in No. 84-5822.
Edith S. Marshall, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellees in No. 85-5145.
Before WALD, Chief Judge, ROBINSON, MIKYA, EDWARDS, RUTH B. GINSBURG, BORK, STARR, SILBERMAN, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.
At the time the brief was filed.
Judge Bork participated in the argument but not the decision in these cases.
Opinion PER CURIAM.
PER CURIAM:
On December 5, 1986, two panels of this circuit issued separate, conflicting opinions regarding the availability of Bivens remedies to litigants challenging federal personnel actions for whom Congress has declined to provide full administrative remedies subject to judicial review under the Civil Service Reform Act (CSRA). See Hubbard v. EPA, 809 F.2d 1, 6-11 (D.C.Cir.1986); Spagnola v. Mathis, 809 F.2d 16, 19-28 (D.C.Cir.1986). On January 6, 1987, the full court vacated the conflicting portions of the two panel opinions and scheduled the matter for rehearing en banc. After argument, we ordered proceedings in these cases to be held in abeyance pending the Supreme Court’s disposition of a petition for certiorari in Kotarski v. Cooper, 799 F.2d 1342 (9th Cir.1986), a case presenting issues similar to those before us. We now decide, with fresh guidance from the Supreme Court, that “special factors counsel ]” against the creation of Bivens remedies in these circumstances. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 396, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971). Accordingly, we affirm the dismissal of appellants’ Bivens claims.
I.
The facts underlying the constitutional claims of Michael Hubbard and Joseph Spagnola are fully set forth in the respective panel opinions and need only briefly be recounted here. Appellant Hubbard, presently a detective with the District of Columbia Metropolitan Police Department, alleges that he was denied employment as a criminal investigator with the Environmental Protection Agency (EPA) because of his exercise of first amendment rights. In particular, Hubbard contends that the EPA and defendant Peter Beeson, an agency hiring official, rejected his job application due to reports that Hubbard had communicated with the press during an investigation of narcotics use by employees and members of Congress in 1981. Hubbard maintains that his communications with the press were “protected speech,” and that Beeson’s rejection of his application on the basis of such speech was in violation of the first amendment. In addition to seeking equitable relief against the EPA, Hubbard sought damages from Beeson personally under the Bivens doctrine. The district court held that Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), precludes a Bivens remedy in this situation, and accordingly dismissed Hubbard’s damages claim.
Joseph C. Spagnola, Jr., an employee of the federal government at all times relevant to this action, sought damages and injunctive relief under the first amendment and 42 U.S.C. § 1985(1) (1982) against two officials for whom he worked in the Office of Federal Procurement Policy of the Office of Management and Budget (OMB). According to Spagnola, the defendants thwarted his efforts to gain promotion beyond the GS-14 level and conspired to prevent him from pursuing professional development in the area of government contracts in retaliation for his “whistleblow-ing” activities. Spagnola appealed from the district court’s dismissal of his Bivens claims for damages against the OMB officials.
While the circumstances surrounding the first amendment claims of Hubbard and Spagnola differ markedly, the CSRA accords claimants in their respective positions substantially the same relief. Under 5 U.S.C. § 1206, each could petition the Office of Special Counsel (OSC) of the Merit Systems Protection Board (MSPB) alleging a “prohibited personnel practice.” See 5 U.S.C. § 1206(a)(1) (1982); see also 5 C.F.R. §§ 1250-61 (1988) (OSC regulations). If OSC, in its discretion, believed the allegations meritorious, it was required to report that along with any findings or recommendation of corrective action to the agency involved. If the agency failed to take action, the OSC could have requested the MSPB to order appropriate corrective action. See 5 U.S.C. § 1206(c)(1)(A) & (B) (1982). Irrespective of the course of action chosen by OSC, judicial review for Hubbard and Spagnola, if available at all, was limited to ensuring that OSC conducted the requisite “adequate inquiry” into the allegations. See Cutts v. Fowler, 692 F.2d 138, 140 (D.C.Cir.1982); 5 U.S.C. § 1207(c) (1982); see also Carducci v. Regan, 714 F.2d 171, 175 (D.C.Cir.1983). Neither Hubbard nor Spagnola could claim the more elaborate administrative protections — including judicial review — that Congress reserved for incumbent employees aggrieved by major personnel actions (e.g., removals, reductions in grade or pay, suspensions of more than 14 days). See 5 U.S.C. §§ 7511-14, 7701-03 (1982).
Prior to initiating their federal actions, both Hubbard and Spagnola petitioned OSC for an investigation into alleged “prohibited personnel practices.” In each case, the claimants filed suit in district court before completion of the OSC investigation. OSC’s ultimate disposition of their petitions was, in any event, the same: it found insufficient evidence to suggest a “prohibited personnel practice” in either case.
II.
In the Bivens case itself, the Supreme Court acknowledged that the power to make policy concerning constitutional remedies was not the exclusive province of the judiciary. The court observed that where there is an “explicit congressional declaration” that injured parties should be “remitted to another remedy, equally effective in the view of Congress,” Bivens, 403 U.S. at 397, 91 S.Ct. at 2005, or where there are “special factors counselling hesitation in the absence of affirmative action by Congress,” id. at 396, 91 S.Ct. at 2005, the judiciary should decline to exercise its discretion in favor of creating damages remedies against federal officials. Accord Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). In deference to these concerns, the Court’s “more recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts.” Schweiker v. Chilicky, — U.S. -, 108 S.Ct. 2460, 2467, 101 L.Ed.2d 370 (1988).
Indicative of this caution is Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), in which the Court, for the first time, found a statutory system of “comprehensive procedural and substantive provisions giving meaningful remedies against the United States,” id. at 368, 103 S.Ct. at 2406, to constitute a “special factor” counselling hesitation against creating a Bivens remedy. Id. at 389-90, 103 S.Ct. at 2417-18. In Bush, as here, the remedial provisions of the CSRA were at issue. Acknowledging that the CSRA’s “remedies [did] not provide complete relief for the plaintiff[ ]” in that case, id. at 388, 103 S.Ct. at 2417, the Court nevertheless declined to supplement the employee’s statutory remedies with a Bivens action. To the Court, the question before it was not one “concern[ing] the merits of the particular remedy that was sought.” Id. at 380, 103 S.Ct. at 2413. Rather, the question was “who should decide whether such a [damages] remedy should be provided[,]” Congress or the judiciary. Id. Ultimately, the Court reasoned that “Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service.” Id. at 389, 103 5.Ct. at 2417.
Because he was challenging a “major personnel action,” the plaintiff-employee in Bush, unlike Hubbard and Spagnola, was able to invoke certain of the CSRA’s elaborate remedial processes which, by statute, culminate in judicial review. See 5 U.S.C. § 7703 (1982); Bush, 462 U.S. at 386-88, 103 S.Ct. at 2415-17. Whether the Court intended Bush to bar damages actions for those employees or applicants for whom the CSRA remedies are not so complete has been the source of great debate. Focusing on language in the Bush opinion that suggests a detached inquiry into the meaningfulness of the particular remedies provided to individual claimants under the CSRA, some courts of appeals have conducted that inquiry and have found certain CSRA remedies wanting. Accordingly, they have declined to read Bush as precluding Bivens remedies in those contexts. See, e.g., McIntosh v. Weinberger, 810 F.2d 1411, 1434-36 (8th Cir.1987) (holding that employee subjected to minor personnel action could sue supervisor for damages), vacated sub nom. Turner v. McIntosh, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 898 (1988); Kotarski v. Cooper, 799 F.2d 1342, 1348-49 (9th Cir.1986) (holding that probationary employee could pursue Bivens action against supervisor), vacated, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 897 (1988); see also Krodel v. Young, 748 F.2d 701, 712 n. 6 (D.C.Cir.1984) (suggesting in dictum that statutory right to petition OSC, without more, would not preclude a Bivens claim for damages), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985); Note, Bivens Doctrine in Flux: Statutory Preclusion of a Constitutional Cause of Action, 101 Harv.L.Rev. 1251, 1262-65 (1988) (arguing that OSC remedy is constitutionally inadequate). Other circuits, acting in the post-Bush environment, have reached the opposite conclusion. See Pinar v. Dole, 747 F.2d 899, 909 (4th Cir.1984) (declining to create Bivens remedy for employee subjected to short suspension), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 30 (1985); Hallock v. Moses, 731 F.2d 754, 757 (11th Cir.1984) (denying damages remedy to victim of “harassment and retaliation”). It was this very issue, whether case-specific analysis is required of the particular statutory remedies available to a claimant, over which the original panels in the cases before us disagreed. See Hubbard, 809 F.2d at 7-9; Spagnola, 809 F.2d at 22-24.
The Supreme Court’s latest pronouncement on the special factors doctrine in Schweiker v. Chilicky, — U.S. -, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988), goes a long way toward resolving the debate. In Chilicky, the Court faced the question of whether Social Security disability claimants whose benefits had been withdrawn unconstitutionally could seek damages against those responsible for the termination. Petitioners, state and disability officials charged with conducting “continue ing disability reviews” pursuant to a 1980 congressional enactment, see Pub.L. 96-265, § 311, as amended, 42 U.S.C. § 421 (1982 & Supp. Ill), argued that in view of the comprehensive and elaborate review and benefit-restoration procedures available to claimants under the Social Security Disability Benefits Reform Act of 1984 (Disability Act), the Court should decline to provide a Bivens remedy in this context. The Court agreed, finding the case indistinguishable from Bush. 108 S.Ct. at 2468. Noting that the Disability Act’s “system for protecting [claimants’] rights is, if anything, considerably more elaborate than the civil service system considered in Bush,” id., the Court concluded that “Congress is in a better position to decide whether or not the public interest would be served by creating [a damages remedy].” Id. at 2469:
Chilicky is significant not only for its holding, but also for its analysis of Bush. In applying the Bush “special factors” doctrine to the Disability Act claims before it, the Chilicky Court made clear that it is the comprehensiveness of the statutory scheme involved, not the “adequacy” of specific remedies extended thereunder, that counsels judicial abstention. Id. at 2467 (citing Bush for “[c]onclu[sion] that the administrative system created by Congress ‘provides meaningful remedies....’” (quoting Bush, 462 U.S. at 386, 103 S.Ct. at 2415) (emphasis added). Indeed, the Court remarked that “[t]he absence of statutory relief ... for a constitutional violation ... does not by any means necessarily imply that courts should award money damages against the officers for the violation.” Id. 108 S.Ct. at 2467 (emphasis added). If the comprehensiveness of a statutory scheme cannot be gainsaid and it appears that “congressional inaction [in providing fof damages remedies] has not been inadvertent[J” id. at 2468, courts should defer to Congress’ judgment with regard to the creation of supplemental Bivens remedies.
As we read Chilicky and Bush together, then, courts must withhold their power to fashion damages remedies when Congress has put in place a comprehensive system to administer public rights, has “not inadvertently” omitted damages remedies for certain claimants, and has not plainly expressed an intention that the courts preserve Bivens remedies. In these circumstances, it is not for the judiciary to question whether Congress’ “response [was] the best response, [for] Congress is the body charged with making the inevitable compromises required in the design of a massive and complex ... program.” Id. at 2470-71.
III.
These general principles alone weigh heavily in favor of declining to create Bivens remedies for claimants situated as Hubbard and Spagnola were. We are further aided, however, by suggestions the Court provided in Chilicky as to how Bush applies to our cases. For in recounting the principal lesson of Bush—that the CSRA’s administrative system provides meaningful remedies and thus precludes Bivens actions against officials in their individual capacities—the Court included a citation implicitly suggesting that the preclusive effect of Bush extends even to those claimants within the system for whom the CSRA provides “no remedy whatsoever.” Id. at 2467. This passage not only squarely implicates the material facts of at least one of the cases before us today, it also further indicates that the Court regards a case-by-case examination of the particular administrative remedies available to a given plaintiff as unnecessary.
Accordingly, the Court vacated two courts of appeals cases presenting issues nearly identical to those we confront today and remanded them “for further consideration in light of [Chilicky ].” See Cooper v. Kotarski, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 898 (1988) (mem.); Turner v. McIntosh, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 898 (1988) (mem.). One of the cases, McIntosh, involved allegations that an Army personnel official “had violated the [] due-process rights [of the plaintiff employees] by concealing and destroying certain merit-promotion records.” McIntosh v. Weinberger, 810 F.2d 1411, 1417 (8th Cir.1987), vacated sub nom. Turner v. McIntosh, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 898 (1988). The actions challenged by plaintiffs in that case, like the actions challenged by appellant Spagnola, constituted “minor personnel actions” for which the plaintiffs’ sole remedy under the CSRA was a petition to OSC. Id. at 1434-36. The plaintiff in Kotarski, an incumbent employee who claimed his removal from a probationary supervisorial position violated his fifth and ninth amendment rights, likewise was limited to an OSC petition under the CSRA. See Kotarski v. Cooper, 799 F.2d 1342, 1348-49 (9th Cir.1986), vacated, — U.S. -, 108 S.Ct. 2861, 101 L,Ed.2d 898 (1988). Although the Court’s orders vacating and remanding Kotarski and McIntosh cannot be regarded as a reversal, the Court’s disposition of these cases certainly counsels us to pay close attention to the developments in “special factors” analysis announced in Chil-icky.
Furthermore, we do not believe the legislative history of the CSRA supports the application of Bivens remedies in the cases before us. After Chilicky, it is quite clear that if Congress has “not inadvertently” omitted damages against officials in the statute at issue, then courts must abstain from supplementing Congress’ otherwise comprehensive statutory relief scheme with Bivens remedies—unless, of course, Congress has clearly expressed a preference that the judiciary preserve Bivens remedies. See Chilicky, 108 S.Ct. at 2468. We find nothing in the legislative history suggesting that Congress’ omission of a damages remedy in the CSRA was anything but advertent, nor do we discern any clear expression of congressional intent that the courts preserve Bivens remedies.
Concededly, the Court has provided few, if any, principles governing whether a particular claimant—and his underlying claim—should be included in a given congressional “comprehensive system” for purposes of applying “special factors” analysis. After Chilicky, of course, this issue has become critical. Nevertheless, while in some cases the outer boundaries for inclusion in “comprehensive systems” may be less than clear, there can be little doubt as to whether Congress has brought claims like those advanced by Hubbard and Spagnola within CSRA’s ambit. This is because the CSRA itself, in one fashion or another, affirmatively speaks to claims such as Hubbard’s and Spagnola’s by condemning the underlying actions as “prohibited personnel practices.” Thus, we are dealing with a statutory scheme that at least technically accommodates appellants’ constitutional challenges. See Carducci v. Regan, 714 F.2d 171, 175 (D.C.Cir.1983) (describing CSRA’s scheme for classifying personnel actions).
IV.
While we decline to extend Bivens remedies to Hubbard and Spagnola, we do not suggest that the CSRA precludes the exercise of federal jurisdiction over the constitutional claims of federal employees and job applicants altogether. But see Pinar v. Dole, 747 F.2d 899, 912 (4th Cir.) (holding that the CSRA forecloses judicial review of constitutional claims relating to “minor” personnel actions), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985); Hallock v. Moses, 731 F.2d 754, 757-58 (11th Cir.1984) (dismissing constitutional claim for equitable relief); Braun v. United States, 707 F.2d 922, 926-27 (6th Cir.) (dismissing claims for equitable relief under 5 U.S.C. § 702), cert. denied sub nom. Hardrich v. United States, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983); Broadway v. Block, 694 F.2d 979, 986 (5th Cir.1982) (holding that minor personnel actions are “committed to agency discretion by law” within meaning of 5 U.S.C. § 701(a)(2)). On the contrary, time and again this court has affirmed the right of civil servants to seek equitable relief against their supervisors, and the agency itself, in vindication of their constitutional rights. See, e.g., Hubbard v. EPA, 809 F.2d 1, 11 (D.C.Cir.1986); Williams v. IRS, 745 F.2d 702, 705 (D.C.Cir.1984); Cutts v. Fowler, 692 F.2d 138, 140-41 (D.C.Cir.1982); Borrell v. United States Int’l Comm. Agency, 682 F.2d 981, 989-90 (D.C.Cir.1982). Of course, to the extent any of these cases indicates that civil service employees may pursue Bivens remedies for the same violations, they are hereby disapproved.
******
In light of the Supreme Court’s holding in Schweiker v. Chilicky, we conclude that “special factors” preclude the creation of a Bivens remedy for civil service employees and applicants who advance constitutional challenges to federal personnel actions. Accordingly, we affirm the district courts’ dismissal of Hubbard’s and Spagnola’s Bivens claims.
. Bivens v. Six Unknown Fed’l Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
. Pub.L. No. 95-454, 92 Stat. Ill (codified as amended in scattered sections of 5 U.S.C.).
. The "prohibited personnel practices" Congress included in the CSRA remedial scheme are set forth at 5 U.S.C. § 2302. The definition sweeps broadly to accommodate the “tak[ing] or fail[ure] to take any ... personnel action if the taking or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.” 5 U.S.C. § 2302(b)(ll) (1982). One such merit principle provides:
All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management ... with proper regard for their ... constitutional rights.
5 U.S.C. § 2301(b)(2) (1982). Both Hubbard’s and Spagnola's allegations implicate this principle squarely and we are therefore convinced that their constitutional claims are cognizable as "prohibited personnel practices” within the CSRA system. See Pinar v. Dole, 747 F.2d 899, 906 (4th Cir.1984), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985). See also H.R. Rep. No. 1717, 95th Cong., 2d Sess. 131 (1978) U.S.Code Cong. & Admin.News 1978, pp. 2723, 2853 (observing that "prohibited personnel practices” include violations of constitutional rights of applicants and employees). Hubbard argues that, as an applicant for federal employment, his claims were not appealable within the CSRA system, but the letter of the statute suggests otherwise. See 5 U.S.C. § 2302(a)(2)(A)(i) (1982) (including “an appointment” within the class of “personnel actions” covered by CSRA).
. Hubbard, as a veteran, had the additional right to Office of Personnel Management (OPM) review of the "passover document" required to be prepared in the event a veteran is rejected for a federal job. See 5 U.S.C. § 3318(b)(1) (1982). At Hubbard’s request, OPM performed the required review and ultimately found no evidence that Hubbard was improperly passed over.
. For instance, in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), the Court held that the "unique disciplinary structure of the Military Establishment and Congress’ activity in the field constitute ‘special factors’ which dictate that it would be inappropriate to provide enlisted military personnel a Bivens -type remedy against their superior officers.” 462 U.S. at 304, 103 S.Ct. at 2368.
. In his opinion for the majority in Bush, Justice Stevens at two points appeared to suggest that the specific remedies extended under the CSRA to the petitioner were “meaningful.” See 462 U.S. at 368, 386, 103 S.Ct. at 2406, 2415; see also id. at 378, 103 S.Ct. at 2411 (observing that “[t]he existing civil service remedies for a demotion in retaliation for protected speech are clearly constitutionally adequate”). Nevertheless, the Court failed to set forth the standards it may have applied in forming such a conclusion.
. The Chilicky plaintiffs, like those in Bush and unlike Hubbard and Spagnola, had available an obligatory, elaborate administrative process, with judicial review, through which they could secure retroactive restoration of the withdrawn benefits. See 42 U.S.C. § 423(f) & (g) (1982 & Supp.III); 108 S.Ct. at 2464. It is thus possible to distinguish Chilicky on the basis that the Court was not presented with claimants whose remedies under the congressional scheme were merely discretionary. We nevertheless believé, infra at pp. 228-29, that undertaking that effort runs counter to the clear direction of the Supreme Court's “special factors" reasoning.
. The passage reads as follows:
Concluding that the administrative system created by Congress “provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies,” ... the Court refused to create a Bivens action even though it assumed a First Amendment violation and acknowledged that "existing remedies do not provide complete relief for the plaintiff[.]” ... See also [Bush, 462 U.S.] at 385, n. 28, 103 S.Ct. at 2414, n. 28 (no remedy whatsoever for short suspensions or for adverse personnel actions against probationary employees).
108 S.Ct. at 2467 (citation and internal footnote omitted).
. More precisely, it is one of the fact situations mentioned in the passage that we find comparable to one of our cases—Spagnola. Spagnola challenges a series of minor personnel actions, the class of which includes the "short suspensions” cited in the passage as entitling the recipients to “no remedy whatsoever.” 108 S.Ct. at 2467.
The Court appears to say in Chilicky that the CSRA extends those aggrieved by minor personnel actions "no remedy whatsoever.” We have noted above, supra at pp. 225-26, as the original panels in these cases agreed, see Hubbard, 809 F.2d at 8; id. at 13 (Wald, J., dissenting); Spagnola, 809 F.2d at 20, that the Act entitles such claimants to the remedy (albeit a limited one) of an OSC petition.
. The most that can be said for the legislative history of the CSRA is that Congress did not expressly intend to eliminate damages remedies. See generally H.Rep. No. 1717, 95th Cong., 2d Sess. 127-43 (1978); S.Rep. No. 969, 95th Cong., 2d Sess. 2-10 (1978). Nevertheless, while this may be relevant under the “explicit congressional declaration” exception to allowing damages remedies, see Bivens, 403 U.S. at 388, 91 S.Ct. at 1999, it has little relevance to the "special factors” exception after Chilicky.
. As we have demonstrated above, supra n. 3, the actions challenged by Hubbard and Spagno-la are plainly cognizable under the CSRA as "personnel actions" and, in turn, as “prohibited personnel practices.”
.The legislative history confirms that Congress’ inclusion of constitutional violations within the CSRA scheme was, at minimum, conscious. In describing the breadth of "prohibited personnel practices” under the Act, the House and Senate Conferees observed that
should a supervisor take action against an employee or applicant without regard for the individual’s privacy or constitutional rights, such an action could result in dismissal, fine, reprimand, or other discipline for the supervisor.
H.Rep. No. 1717, 95th Cong., 2d Sess. 131 (1978).
. Judicial review, we caution, is limited to constitutional claims; as we have previously held, the CSRA precludes review of the nonconstitu-tional claims of civil service employees and applicants. See Carducci v. Regan, 714 F.2d 171, 175 (D.C.Cir.1983).
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_respondent
|
144
|
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.
PORTER et al. v. NUSSLE
No. 00-853.
Argued January 14, 2002
Decided February 26, 2002
Ginsburg, J., delivered the opinion for a unanimous Court.
Richard Blumenthal, Attorney General of Connecticut, argued the cause for petitioners. With him on the briefs were Gregory T D’Auria, Robert B. Fiske III, Perry Zinn-Rowthorn, Steven R. Strom, and Mark F. Kohler, Assistant Attorneys General.
John R. Williams argued the cause for respondent. With him on the briefs was Norman A. Pattis.
Irving R. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Clement, Barbara L. Herwig, and Peter R. Metier
Briefs of amici curiae urging reversal were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, and Caitlin J. Halligan, First Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Bill Lockyer of California, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Steve Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. leyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Jeremiah W. Nixon of Missouri, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Betty D. Montgomery of Ohio, W A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, John Cornyn of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; and for the National Conference of State Legislatives et al. by Richard Ruda and James I. Crowley.
Justice Ginsburg
delivered the opinion of the Court.
This case concerns the obligation of prisoners who claim denial of their federal rights while incarcerated to exhaust prison grievance procedures before seeking judicial relief. Plaintiff-respondent Ronald Nussle, an inmate in a Connecticut prison, brought directly to court, without filing an inmate grievance, a complaint charging that corrections officers singled him out for a severe beating, in violation of the Eighth Amendment’s ban on “cruel and unusual punishments.” Nussle bypassed the grievance procedure despite a provision of the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321-73, as amended, 42 U. S. C. § 1997e(a) (1994 ed., Supp. V), that directs: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”
The Court of Appeals for the Second Circuit held that §1997e(a) governs only conditions affecting prisoners generally, not single incidents, such as corrections officers’ use of excessive force, actions that immediately affect only particular prisoners. Nussle defends the Second Circuit’s judgment, but urges that the relevant distinction is between excessive force claims, which, he says, need not be pursued administratively, and all other claims, which, he recognizes, must proceed first through the prison grievance process. We reject both readings and hold, in line with the text and purpose of the PLRA, our precedent in point, and the weight of lower court authority, that §1997e(a)’s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences.
I
Respondent Ronald Nussle is an inmate at the Cheshire Correctional Institution in Connecticut. App. 38. According to his complaint, corrections officers at the prison subjected him to “a prolonged and sustained pattern of harassment and intimidation” from the time of his arrival there in May 1996. Id., at 39. Nussle alleged that he was singled out because he was “perceived” to be a friend of the Governor of Connecticut, with whom corrections officers were feuding over labor issues. Ibid.
Concerning the episode in suit, Nussle asserted that, on or about June 15,1996, several officers, including defendant-petitioner Porter, ordered Nussle to leave his cell, “placed him against a wall and struck him with their hands, kneed him in the back, [and] pulled his hair.” Ibid. Nussle alleged that the attack was unprovoked and unjustified, and that the officers told him they would kill him if he reported the beating. Ibid.
Then, as now, the Connecticut Department of Correction provided a grievance system for prisoners. See id., at 5-18. Under that system, grievances must be filed within 30 days of the “occurrence.” Id., at 11. Rules governing the grievance process include provisions on confidentiality and against reprisals. Id., at 17-18.
Without filing a grievance, on June 10, 1999, Nussle commenced an action in Federal District Court under 42 U. S. C. § 1983; he filed suit days before the three-year statute of limitations ran out on the § 1983 claim. Nussle charged, principally, that the corrections officers’ assault violated his right to be free from cruel and unusual punishment under the Eighth Amendment, as made applicable to the States by the Fourteenth Amendment. App. 38. The District Court, relying on § 1997e(a), dismissed Nussle’s complaint for failure to exhaust administrative remedies. Nussle v. Willette, 3:99CV1091(AHN) (D. Conn., Nov. 22, 1999), App. 43.
Construing § 1997e(a) narrowly because it is an exception “to the general rule of non-exhaustion in § 1983 cases,” the Court of Appeals for the Second Circuit reversed the District Court’s judgment; the appeals court held that “exhaustion of administrative remedies is not required for [prisoner] claims of assault or excessive force brought under § 1983.” Nussle v. Willette, 224 F. 3d 95, 106 (2000). Section 1997e(a) requires administrative exhaustion of inmates’ claims “with respect to prison conditions,” but contains no definition of the words “prison conditions.” The appeals court found the term “scarcely free of ambiguity.” Id., at 101. For purposes of the PLRA’s exhaustion requirement, the court concluded, the term was most appropriately read to mean “'circumstances affecting everyone in the area,”’ rather than “ ‘single or momentary matter[s],’ such as beatings... directed at particular individuals.” Ibid, (quoting Booth v. Churner, 206 F. 3d 289, 300-301 (CA3 2000) (Noonan, J., concurring and dissenting), aff’d on other grounds, 532 U. S. 731 (2001)).
The Court of Appeals found support for its position in the PLRA’s legislative history. Floor statements, “overwhelmingly suggested]” that Congress sought to curtail suits qualifying as “frivolous” because of their “subject matter,” e. g., suits over “insufficient storage locker space,” “a defective haircut,” or “being served chunky peanut butter instead of the creamy variety.” 224 F. 3d, at 105 (internal quotation marks omitted). Actions seeking relief from corrections officer brutality, the Second Circuit stressed, are not of that genre. Further, the Court of Appeals referred to pre-PLRA decisions in which this Court had “disaggre-gate[d] the broad category of Eighth Amendment claims so as to distinguish [for proof of injury and mens rea purposes] between ‘excessive force’ claims, on the one hand, and ‘conditions of confinement’ claims, on the other.” Id., at 106 (citing Hudson v. McMillian, 503 U. S. 1 (1992), and Farmer v. Brennan, 511 U. S. 825 (1994)).
In conflict with the Second Circuit, other Federal Courts of Appeals have determined that prisoners alleging assaults by prison guards must meet § 1997e(a)’s exhaustion requirement before commencing a civil rights action. See Smith v. Zachary, 255 F. 3d 446 (CA7 2001); Higginbottom v. Carter, 223 F. 3d 1259 (CA11 2000); Booth v. Churner, 206 F. 3d 289 (CA3 2000); Freeman v. Francis, 196 F. 3d 641 (CA6 1999). We granted certiorari to resolve the intercircuit conflict, 532 U. S. 1065 (2001), and now reverse the Second Circuit’s judgment.
II
Ordinarily, plaintiffs pursuing civil rights claims under 42 U. S. C. § 1983 need not exhaust administrative remedies before filing suit in court. See Patsy v. Board of Regents of Fla., 457 U. S. 496, 516 (1982). Prisoner suits alleging constitutional deprivations while incarcerated once fell within this general rule. See Wilwording v. Swenson, 404 U. S. 249, 251 (1971) (per curiam).
In 1980, however, Congress introduced an exhaustion prescription for suits initiated by state prisoners. See Civil Rights of Institutionalized Persons Act, 94 Stat. 352, as amended, 42 U. S. C. § 1997e (1994 ed.). This measure authorized district courts to stay a state prisoner’s §1983 action “for a period of not to exceed 180 days” while the prisoner exhausted available “plain, speedy, and effective administrative remedies.” § 1997e(a)(l). Exhaustion under the 1980 prescription was in large part discretionary; it could be ordered only if the State’s prison grievance system met specified federal standards, and even then, only if, in the particular case, the court believed the requirement “appropriate and in the interests of justice.” §§ 1997e(a) and (b). We described this provision as a “limited exhaustion requirement” in McCarthy v. Madigan, 503 U. S. 140, 150-151 (1992), and thought it inapplicable to prisoner suits for damages when monetary relief was unavailable through the prison grievance system.
In 1996, as part of the PLRA, Congress invigorated the exhaustion prescription. The revised exhaustion provision, titled “Suits by prisoners,” states: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U. S. C. § 1997e(a) (1994 ed., Supp. V).
The current exhaustion provision differs markedly from its predecessor. Onee within the discretion of the district court, exhaustion in cases covered by §1997e(a) is now mandatory. See Booth v. Churner, 532 U. S. 731, 739 (2001). All “available” remedies must now be exhausted; those remedies need not meet federal standards, nor must they be “plain, speedy, and effective.” See ibid.; see also id., at 740, n. 5. Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. See id., at 741. And unlike the previous provision, which encompassed only § 1983 suits, exhaustion is now required for all “action[s]... brought with respect to prison conditions,” whether under §1983 or “any other Federal law.” Compare 42 U. S. C. § 1997e (1994 ed.) with 42 U. S. C. § 1997e(a) (1994 ed., Supp. V). Thus federal prisoners suing under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting a § 1983 suit.
Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate’s grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. Booth, 532 U. S., at 737. In other instances, the internal review might “filter out some frivolous claims.” Ibid. And for eases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy. See ibid.; see also Madigan, 503 U. S., at 146.
Congress described the cases covered by § 1997e(a)’s exhaustion requirement as “actionfs]... brought with respect to prison conditions.” Nussle’s case requires us to determine what the §1997e(a) term “prison conditions” means, given Congress’ failure to define the term in the text of the exhaustion provision. We are guided in this endeavor by the PLRA’s text and context, and by our prior decisions relating to “[s]uits by prisoners,” § 1997e.
As to precedent, the pathmarking opinion is McCarthy v. Bronson, 500 U. S. 136 (1991), which construed 28 U. S. C. § 636(b)(1)(B) (1988 ed.), a Judicial Code provision authorizing district judges to refer to magistrate judges, inter alia, “prisoner petitions challenging conditions of confinement.” The petitioning prisoner in McCarthy argued that § 636(b)(1)(B) allowed nonconsensual referrals “only when a prisoner challenges ongoing prison conditions.” 500 U. S., at 138. The complaint in McCarthy targeted no “ongoing prison conditions”; it homed in on “an isolated incident” of excessive force. Ibid. For that reason, according to the McCarthy petitioner, nonconsensual referral of his case was impermissible. Id., at 138-139.
We did not “quarrel with” the prisoner’s assertion in McCarthy that “the most natural reading of the phrase ‘challenging conditions of confinement,’ when viewed in isolation, would not include suits seeking relief from isolated episodes of unconstitutional conduct.” Id., at 139. We nonetheless concluded that the petitioner’s argument failed upon reading the phrase “in its proper context.” Ibid. We found no suggestion in § 636(b)(1)(B) that Congress meant to divide prisoner petitions “into subcategories.” Ibid. “On the contrary,” we observed, “when the relevant section is read in its entirety, it suggests that Congress intended to authorize the nonconsensual reference of all prisoner petitions to a magistrate.” Ibid. The Federal Magistrates Act, we noted, covers actions of two kinds: challenges to “conditions of confinement”; and “applications for habeas corpus relief.” Id., at 140. Congress, we concluded, “intended to include in their entirety th[ose] two primary categories of suits brought by prisoners.” Ibid.
“Just three years before [§ 636(b)(1)(B)] was drafted,” we explained.in McCarthy, “our opinion in Preiser v. Rodriguez, 411 U. S. 475 (1973), had described [the] two broad categories of prisoner petitions: (1) those challenging the fact or duration of confinement itself; and (2) those challenging the conditions of confinement.” Ibid. Preiser v. Rodriguez, 411 U. S. 475 (1973), left no doubt, we further stated in McCarthy, that “the latter category unambiguously embraced the kind of single episode cases that petitioner’s construction would exclude.” 500 U. S., at 141. We found it telling that Congress, in composing the Magistrates Act, chose language “that so clearly paralleled] our Preiser opinion.” Id., at 142. We considered it significant as well that the purpose of the Magistrates Act — to lighten the caseload of overworked district judges — would be thwarted by opening the door to satellite litigation over “the precise contours of [the] suggested exception for single episode cases.” Id., at 143.
As in McCarthy, we here read the term “prison conditions” not in isolation, but “in its proper context.” Id., at 139. The PLRA exhaustion provision is captioned “Suits by prisoners,” see § 1997e; this unqualified heading scarcely aids the argument that Congress meant to bisect the universe of prisoner suits. See ibid.; see also Almendarez-Torres v. United States, 523 U. S. 224, 234 (1998) (“[T]he title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute.” (internal quotation marks omitted)).
This Court generally “presume[s] that Congress expects its statutes to be read in conformity with th[e] Court’s precedents.” United States v. Wells, 519 U. S. 482, 495 (1997). That presumption, and the PLRA’s dominant concern to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court, see Booth, 532 U. S., at 737, persuade us that § 1997e(a)’s key words “prison conditions” are properly read through the lens of McCarthy and Preiser. Those decisions tug strongly away from classifying suits about prison guards’ use of excessive force, one or many times, as anything other than actions “with respect to prison conditions.”
Nussle places principal reliance on Hudson v. McMillian, 503 U. S. 1 (1992), and Farmer v. Brennan, 511 U. S. 825, 835-836 (1994), and the Second Circuit found support for its position in those cases as well, 224 F. 3d, at 106. Hudson held that to sustain a claim of excessive force, a prisoner need not show significant injury. 503 U. S., at 9. In so ruling, the Court did indeed distinguish excessive force claims from “conditions of confinement” claims; to sustain a claim of the latter kind “significant injury” must be shown. Id., at 8-9. Hudson also observed that a “conditions of confinement” claim may succeed if a prisoner demonstrates that prison officials acted with “deliberate indifference,” id., at 8 (citing Wilson v. Seiter, 501 U. S. 294, 298 (1991)), while a prisoner alleging excessive force must demonstrate that the defendant acted “maliciously and sadistically to cause harm,” Hudson, 503 U. S., at 7. Farmer similarly distinguished the mental state that must be shown to prevail on an excessive force claim, i. e., “purposeful or knowing conduct,” from the lesser mens rea requirement governing “conditions of confinement” claims, i. e., “deliberate indifference.” 511 U. S., at 835-836. We do not question those decisions and attendant distinctions in the context in which they were made. But the question presented here is of a different order.
Hudson and Farmer trained solely and precisely on proof requirements: what injury must a plaintiff allege and show; what mental state must a plaintiff plead and prove. Proof requirements once a case is in court, however, do not touch or concern the threshold inquiry before us: whether resort to a prison grievance process must precede resort to a court. We have no reason to believe that Congress meant to release the evidentiary distinctions drawn in Hudson and Farmer from their moorings and extend their application to the otherwise invigorated exhaustion requirement of § 1997e(a). Such an extension would be highly anomalous given Congress’ elimination of judicial discretion to dispense with exhaustion and its deletion of the former constraint that administrative remedies must be “plain, speedy, and effective” before exhaustion could be required. See supra, at 524; Booth, 532 U. S., at 739; cf. id., at 740-741 (“Congress’s imposition of an obviously broader exhaustion requirement makes it highly implausible that it meant to give prisoners a strong inducement to skip the administrative process simply by limiting prayers for relief to money damages not offered through administrative grievance mechanisms.”).
Nussle contends that Congress added the words “prison conditions” to the text of §1997e(a) specifically to exempt excessive force claims from the now mandatory exhaustion requirement; he sees that requirement as applicable mainly to “ ‘prison conditions’ claims that may be frivolous as to subject matter,” 224 F. 3d, at 106, See Brief for Respondent 2, 26-27. It is at least equally plausible, however, that Congress inserted “prison conditions” into the exhaustion provision simply to make it clear that preincarceration claims fall outside § 1997e(a), for example, a Title VII claim against the prisoner’s preincarceration employer, or, for that matter, a § 1983 claim against his arresting officer.
Furthermore, the asserted distinction between excessive force claims that need not be exhausted, on the one hand, and exhaustion-mandatory “frivolous” claims on the other, see id., at 2,26-27, is untenable, for “[e]xcessive force claims can be frivolous,” Smith, 255 F. 3d, at 452 (“Inmates can allege they were subject to vicious nudges.”), and exhaustion serves purposes beyond weeding out frivolous allegations, see supra, at 524-525.
Other infirmities inhere in the Second Circuit’s disposition. See McCarthy, 500 U. S., at 143 (“Petitioner’s definition would generate additional work for the district courts because the distinction between cases challenging ongoing conditions and those challenging specific acts of alleged misconduct will often be difficult to identify.”). As McCarthy emphasized, in the prison environment a specific incident may be symptomatic rather than aberrational. Id., at 143-144. An unwarranted assault by a corrections officer may be reflective of a systemic problem traceable to poor hiring practices, inadequate training, or insufficient supervision. See Smith, 255 F. 3d, at 449. Nussle himself alleged in this very case not only the beating he suffered on June 15, 1996; he also alleged, extending before and after that date, “a prolonged and sustained pattern of harassment and intimidation by corrections officers.” App.
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:
|
sc_lcdisagreement
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
UNITED STATES v. TWIN CITY POWER CO. et al.
No. 21.
Argued October 18, 1955.
Decided January 23, 1956.
Ralph S. Spritzer argued the cause for the United States. With him on the brief were Solicitor General Sobelojf, Assistant Attorney General Morton and Roger P. Marquis.
David W. Robinson argued the cause for respondents. With him on the brief were James F. Dreher and R. Hoke Robinson.
Mr. JusticeDouglas
delivered the opinion of the
This is a suit for condemnation of land instituted by the United States against respondent power company. A single question of valuation is presented. It is whether the just compensation which the United States must pay by force of the Fifth Amendment includes the value of the land as a site for hydroelectric power operations. The Fourth Circuit Court of Appeals held that it does. 215 2d 592. The Court of Appeals for the Fifth Circuit reached the same result in litigation involving other lands the same hydroelectric project. United States v. Twin. City Power Co., 221 F. 2d 299. We granted the petition certiorari in the former case because of the importance the issue presented. 348 U. S. 910.
The condemnation proceedings are part of the procedure for completion of the Clark Hill project on the Savannah River, a navigable stream in southeastern United States. The Clark Hill project is the first in series of steps recommended by the Chief of Army Engineers for the improvement of the basin of that river. R. Doc. No. 657, 78th Cong., 2d Sess. That Report conceives of the Clark Hill project as serving multiple purposes — hydroelectric, flood control, and navigation. It states that the Clark Hill project, “if suitably constructed operated primarily for hydroelectric-power develop-would incidentally reduce downstream flood dam- and improve low-water flows for navigation.” Id., p. 3. Congress approved this project as part of “the comprehensive development of the Savannah River Basin for flood control and other purposes.” Section 10 of the Flood Control Act of 1944, 58 Stat. 887. And see United States ex rel. Chapman v. Federal Power Commission, 345 U. S. 153, 170.
The Court of Appeals concluded that the improvement of navigation was not the purpose of the taking but that the Clark Hill project was designed to serve flood control and water-power development. 215 F. 2d, at 597. It is not for courts, however, to substitute their judgments for congressional decisions on what is or is not necessary for the improvement or protection of navigation. See Arizona v. California, 283 U. S. 423, 455-457. The role of the judiciary in reviewing the legislative judgment is a narrow one in any case. See Berman v. Parker, 348 U. S. 26, 32; United States ex rel. TV A v. Welch, 327 U. S. 546, 552. The decision of Congress that this project will serve the interests of navigation involves engineering and policy considerations for Congress and Congress alone to evaluate. Courts should respect that decision until and unless it is shown “to involve an impossibility,” as Mr. Justice Holmes expressed it in Old Dominion Co. v. United States, 269 U. S. 55, 66. If the interests of navigation are served, it is constitutionally irrelevant that other purposes may also be advanced. United States v. Appalachian Power Co., 311 U. S. 377, 426; Oklahoma ex rel. Phillips v. Atkinson Co., 313 U. S. 508, 525, 533-534. As we said in the Appalachian Power Co. case, “Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control.” 311 U. S., at 426.
The interest of the United States in the flow of a navigable stream originates in the Commerce Clause. That Clause speaks in terms of power, not of property. But the power is a dominant one which can be asserted to the any competing or conflicting one. The power is a privilege which we have called “a dominant servitude” (see United States v. Commodore Park, Inc., 324 U. S. 386, 391; Federal Power Commission v. Niagara Mohawk Power Corp., 347 U. S. 239, 249) or “a superior navigation easement.” United States v. Oerlach Live Stock Co., 339 U. S. 725, 736. The legislative history and construction of particular enactments may lead to the conclusion that Congress exercised less than its constitutional power, fell short of appropriating the flow of the river to the public domain, and provided that private rights existing under state law should be compensable or otherwise recognized. Such were United States v. Gerlach Live Stock Co., supra, and Federal Power Commission v. Niagara Mohawk Power Corp., supra. We have a different situation here, one where the United States displaces all competing interests and appropriates the entire flow of the river for the declared public purpose.
We can also put aside such cases as United States v. Kansas City Life Ins. Co., 339 U. S. 799, where assertion of the dominant servitude in the navigable river injured property beyond the bed of the stream. Here we are dealing with the. stream itself, for it is in the water power that respondents have been granted a compensable interest.
however, that the special water-rights value should be awarded the owners of this land since it lies not in the bed of the river nor below high water but above and beyond the ordinary high-water mark. An effort is made by this argument to establish that this private land is not burdened with the Government’s servitude. The flaw in that reasoning is that the landowner here seeks a value in the flow of the stream, a value inheres in the Government’s servitude and one that under our decisions the Government can grant or with-as it chooses. It is no answer to say that payment is sought only for the location value of the fast lands. That special location value is due to the flow of the stream; and if the United States were required to pay the judgments below, it would be compensating the landowner for the increment of value added to the fast lands if the flow of the stream were taken into account.
That is illustrated by United States v. Chandler-Dunbar Co., 229 U. S. 53, the case that controls this one. In that case a private company installed a power project in St. Mary's River under a permit from the Government, revocable at will. The permit was revoked, Congress appropriating the entire flow of the stream for navigation purposes. The Court unanimously held that the riparian owner had no compensable interest in the water power of which it had been deprived. Mr. Justice Lurton, speaking for the Court, said, “Ownership of a private stream wholly upon the lands of an individual is conceivable; but that the running water in a great navigable stream is capable of private ownership is inconceivable.” Id., at 69. The Court accordingly reversed a judgment that awarded the riparian owner what respondents have obtained in this case, viz., “the present money value of the rapids and falls to the Chandler-Dunbar Company as riparian owners of the shore and appurtenant submerged land.” Id., at 74. The Court said, “The Government had dominion over the water power of the rapids and falls and cannot be required to pay any hypothetical additional value to a riparian owner who had no right to appropriate the current to his own commercial use.” Id., at 76. Some of the land owned by the private company was in the bed of the stream, some above ordinary high water. But the location of the land was not determinative. It was the dominion of the Government over the water power that controlled the decision. Both in Chandler-Dunbar and in this case it is the water power that creates the special value, whether the lands are above or below ordinary high water. The holding in Chandler-Dunbar led us to say in United States v. Appalachian Power Co., supra, at 424, that the “exclusion of riparian owners” from the benefits of the power in a navigable stream “without compensation is entirely within the Government’s discretion.” And again, “If the Government were now to build the dam, it would have to pay the fair value, judicially determined, for the fast land; nothing for the water power.” Id., at 427.
The power company in the present case is certainly in no stronger position than the owner of the hydroelectric site in the Chandler-Dunbar case. While the latter was deprived of a going private power project by the Government, the present private owners never had a power project on the Savannah and as a result of the Government’s pre-emption never can have one.
It is no answer to say that these private owners had interests in the water that were recognized by state law. We deal here with the federal domain, an area which Congress can completely pre-empt, leaving no vested private claims that constitute “private property” within the meaning of the Fifth Amendment. Location of the lands might under some circumstances give them special value, as our cases have illustrated. But to attach a value of water power of the Savannah River due to location and to enforce that value against the United States would go contra to the teaching of Chandler-Dunbar — “that the running water in a great navigable stream is capable of private ownership is inconceivable.” 229 U. S., at 69.
The holding of the Chandler-Dunbar case that water power in a navigable stream is not by force of the Fifth Amendment a compensable interest when the United States asserts its easement of navigation is in harmony with another rule of law expressed in United States v. Miller, 317 U. S. 369, 375.
“Since the owner is to receive no more than indemnity for his loss, his award cannot be enhanced by any gain to the taker. Thus, although the market value of the property is to be fixed with due consideration of all its available uses, its special value to the condemnor as distinguished from others who may or may not possess the power to condemn, must be excluded as an element of market value.”
The Court in the Chandler-Dunbar case emphasized that it was only loss to the owner, not gain to the taker, that is compensable. 229 U. S., at 76. If the owner of the fast lands can demand water-power value as part of his compensation, he gets the value of a right that the Government in the exercise of its dominant servitude can grant or withhold as it chooses. The right has value or is an empty one dependent solely on the Government. What the Government can grant or withhold and exploit for its own benefit has a value that is peculiar to it and that no other user enjoys. Cf. U. S. ex rel. T. V. A. v. Powelson, 319 U. S. 266, 273 et seg. To require the United States to pay for this water-power value would be to create private claims in the public domain.
Reversed.
In the Chandler-Dunbar case, an award of compensation was made for the value of the land for a lock and canal, passing “around the falls and rapids.” United States v. Chandler-Dunbar Co., 229 U. S., at 67, 76-78. It may be that the Court was influenced by the fact that, on the special facts of the case, the use of the land for canals and locks was wholly consistent with the dominant navigation servitude of the United States and indeed aided navigation. Whatever may be said for that phase of the case, it affords no support for respondent, since water-power value, held to be compensable by the Court of Appeals, was ruled to be noncompensable in the Chandler-Dunbar case.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
|
songer_casetyp1_1-3-1
|
N
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
CAMBIST FILMS, INC., a Corporation, Appellant, v. Robert W. DUGGAN, District Attorney for Allegheny County, Commonwealth of Pennsylvania, Edward G. Crone, Chief of Detectives, Allegheny County, Commonwealth of Pennsylvania, Joseph M. Loughran, District Attorney for West-moreland County, Commonwealth of Pennsylvania and Edward Gordon, Chief of Detectives of Westmoreland County, Commonwealth of Pennsylvania.
No. 17985.
United States Court of Appeals Third Circuit.
Argued Nov. 7, 1969.
Decided Dec. 30, 1969.
David F. Alpern, Alpern & Alpern, Pittsburgh, Pa., for appellant.
Henry A. Martin, Asst. Dist. Atty., Greensburg, Pa. (Joseph M. Loughran, Dist. Atty., Greensburg, Pa., on the brief), for appellee.
Before MARIS, SEITZ and STAHL, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
The plaintiff in this case is the owner of distribution rights to a motion picture film, titled “The Female”. In March, 1969 the plaintiff contracted with four theatres in Allegheny County and one in Westmoreland County, both in the Western District of Pennsylvania, to exhibit the picture for a week’s run. On March 7 and 8, 1969 Allegheny County detectives viewed a portion of the showing of the film at each of the four theatres in that county, after which they seized the prints of the film being projected at those theatres without warrants, alleging the picture to be obscene, and instituted criminal proceedings against the theatre managers for violation of the Pennsylvania obscenity statute. 18 P.S.(Pa.) § 4524. On March 13, 1969 Westmoreland County detectives viewed the entire showing of the film at the theatre at which it was being shown in that county and then seized, without a warrant, the print of the film being projected in that theatre and instituted criminal proceedings against the theatre manager and the projectionist.
On March 17, 1969 the plaintiff filed the present action in the District Court for the Western District of Pennsylvania against the district attorneys of Allegheny and Westmoreland Counties and their chiefs of detectives for an order to compel the return of the prints and an injunction against any criminal prosecutions arising out of the seizure of the prints. After a hearing the district court filed an opinion, 1969, 298 F.Supp. 1148, and entered an order directing the Allegheny County defendants to return the prints seized in that county and dismissing the action as to the Westmore-land County defendants. The order did not enjoin any of the criminal prosecutions. From the order dismissing the action as to the Westmoreland County defendants the plaintiff took the appeal which is now before us.
Briefly stated, the rationale of the district court was that the seizure of the film prints without a warrant was lawful if made incident to a lawful arrest without a warrant for a crime committed in the presence of the arresting officer. The court further reasoned that the arrest in Westmoreland County was lawful because the arresting officers were in a position to determine that the film was obscene, having viewed it in its entirety, but that the arrests in Allegheny County were not valid, and therefore the seizures were invalid, because the officers, not having viewed the film in its entirety, were not in a position to determine that “its dominant theme, taken as a whole, [had] an appeal to prurient interest”, the test laid down by the Pennsylvania statute. 18 P.S.(Pa.) § 4524(a).
We cannot agree with the basic premise of the district court that police officers may, after viewing a motion picture themselves, determine whether it is obscene and, if they determine it to be obscene, proceed to arrest the exhibitor and seize the film without a warrant. On the contrary, it is now settled that the First and Fourteenth Amendments to the Constitution require that there be an adversary judicial hearing and determination of obscenity before a warrant may be issued to search and seize alleged obscene materials. Marcus v. Search Warrants, 1961, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; A Quantity of Copies of Books v. State of Kansas, 1964, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809. Such a hearing and determination is, a fortiori, required where officers, as in this case, seize without a search warrant materials alleged by them to be obscene. For such a nonjudieial ex parte determination does not afford the owner due process of law. State v. Parisi, 1962, 76 N.J.Super. 115, 183 A.2d 801; Stentel v. Smith, 1963, 18 A.D.2d 458, 240 N.Y.S.2d 200; Flack v. Municipal Court for Anaheim-Fullerton J. D., 1967, 66 Cal.2d 981, 59 Cal.Rptr. 872, 429 P.2d 192; City News Center, Inc. v. Carson, D.C.Fla.1969, 298 F. Supp. 706; Sokolic v. Ryan, D.C.Ga.1969, 304 F.Supp. 213.
We are in complete accord with the views expressed by the Supreme Court of California in Flack v. Municipal Court, supra, in which case, which involved facts similar to those in the present case, the court said: [59 Cal. Rptr. at 878, 879, 429 P.2d at 198, 199]
“While it is settled that in the ordinary case a search incident to an arrest is not ‘unreasonable’ if the arrest itself is lawful * * * the First Amendmént compels more restrictive rules in cases in which the arrest and search relate to alleged obscenity. The lesson of Marcus, Quantity of Books * * * is that since constitutionally protected speech is involved, ‘Determination by police officers of the status of suspected books, papers, etc. — whether to be classified as obscene or not obscene — is not enough protection to the owner to constitute due process.’ (Italics added) ■3v
“* * * It is incongruous to condemn, as vesting too abundant discretion in the enforcing officer, a search and seizure made on an overly broad warrant * * * while permitting officers an unfettered discretion in seizures effected without a warrant under the guise of being incident to arrest. In both circumstances constitutionally compelled procedural safeguards are lacking * * *”
It follows that the seizure of the print of the plaintiff’s film “The Female” by the Westmoreland County detectives on March 13, 1969 was illegal and that so much of the order entered by the district court as dismissed the action against the Westmoreland County defendants must be reversed and the cause remanded for the entry of an appropriate order directing those defendants to return the print to the plaintiff.
In its notice of appeal the plaintiff complained of the failure of the order of the district court to enjoin the prosecution of the criminal cases arising in connection with the seizure of the film prints. This point, if pressed, would involve the more difficult question of the power of a federal court to interfere with the prosecution of a criminal case in the state court. However, it was not pressed on appeal and we do not consider it.
So much of the order of the district court as dismissed the action with respect to defendants Joseph M. Loughran and Edward Gordon will be reversed and the cause will be remanded to the district court with directions to enter an order directing those defendants forthwith to return to the plaintiff the print of the motion picture film, titled “The Female”, which was seized by Westmore-land County detectives on March 13, 1969.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_appel1_7_5
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
In Re John Rodgers BURNLEY, Plaintiff-Appellant.
No. 91-7369.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 29, 1992.
Decided Dec. 22, 1992.
Amended by Order Filed March 4, 1993.
Roger Diseker, Third-Year Student, University of Virginia School of Law, Char-lottesville, VA, argued (Harold J. Krent, Post-Conviction Assistance Project and John Nalbandian, University of Virginia School of Law, on brief), for appellant.
Robert W. Jaspen, Asst. U.S. Atty., Richmond, VA, argued (Richard Cullen, U.S. Atty., on brief), for appellee.
Before RUSSELL, WILKINS, and HAMILTON, Circuit Judges.
OPINION
PER CURIAM:
Plaintiff, John Rogers Burnley, is a prison inmate, who is a frequent civil rights complainant. He appeals from a district court’s denial of his motion to modify an injunction that imposed on him a system for pre-filing review of his civil rights claims and the order of their filing. Because Burnley failed to perfect a timely appeal from the initial order imposing the pre-filing review system on him, this Court lacks jurisdiction to consider his attack on that order. Accordingly, only the denial of Burnley's motion to modify the injunction is properly before us. Since we find that the district court did not abuse its discretion in denying that motion, we affirm.
I.
Burnley is an inmate at the Bland Correctional Center in Virginia. Since 1981, Burnley has filed over fifty civil rights suits under 42 U.S.C. § 1983 against countless defendants. On July 11, 1990, in response to this flood of litigation, the district court entered an order imposing a pre-filing review system on Burnley. In its order the district court instructed the clerk of court to number consecutively each of Burnley’s Section 1983 complaints and to process the complaints in the order in which they were received. The court’s order also directed the clerk to process only one case at a time unless a “bona fide emergency” existed. Under the system, Burnley could choose to dismiss a pending action without prejudice in order to expedite consideration of other complaints. The court’s order specified, however, that if any responsive pleadings or motions had been filed in a case, the dismissal would be with prejudice.
Over a year later, on October 22, 1991, the district court issued a memorandum and order warning Burnley that the statute of limitations continued to run in each of his Section 1983 actions. Additionally, the district court directed Burnley “to list the date when each transaction or occurrence underlying each complaint occurred with respect to each named defendant” and to notify the court as to which eases were priority cases to be considered first.
On November 12, 1991, Burnley filed a motion requesting the district court to modify the review system in order to permit him to maintain two pending cases at one time. The district court denied his motion on December 3, 1991. Burnley then filed a timely notice of appeal.
Burnley contends on appeal that the district court abused its discretion when it adopted the pre-filing review system. Ap-pellee, United States, on the other hand, argues that this Court lacks jurisdiction to consider the merits of the underlying order that instituted the pre-filing review system. The United States contends that because Burnley failed to appeal the initial order within the required time frame, he is now barred from arguing the merits of the initial order. Burnley counters, however, that assessment of the merits of his motion necessarily requires consideration of the underlying order.
II.
In cases where a party submits a motion such as Burnley’s, which is unnamed and does not refer to a specific Federal Rule of Civil Procedure, the courts have considered that motion either a Rule 59(e) motion to alter or amend a judgment, or a Rule 60(b) motion for relief from a judgment or order. Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th Cir.1988). In this case the question of which rule applies is quickly resolved-Burnley failed to file the motion within ten days of entry of judgment, therefore Rule 59(e) is inapplicable. Fed.R.Civ.Pro. 59(e).
Considering Burnley's motion as a Rule 60(b) motion, however, does not solve his problems. In ruling on an appeal from a denial of a Rule 60(b) motion this Court may not review the merits of the underlying order; it may only review the denial of the motion with respect to the grounds set forth in Rule 60(b). Browder v. Director, Illinois Dep`t of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978); Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir.1991); Sanders, 862 F.2d at 169; cf. Tilley v. United States, 375 F.2d 678, 684 (4th Cir.1967). A Rule 60(b) motion may not substitute for a timely appeal. Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir.1989). The district court's decision to deny the motion is reviewable under an abuse of discretion standard. Browder, 434 U.s. at 263 n. 7, 98 5.Ct. at 560 n. 7; Sanders, 862 F.2d at 169; Harman v. Pauley, 678 F.2d 479, 480 (4th Cir.1982).
It does not appear that the district court abused its discretion in this case. When making a motion under Rule 60(b), the party moving for relief "must clearly establish the grounds therefor to the satisfaction of the district court," Virgin Islands Nat'l Bank v. Tyson, 506 F.2d 802, 804 (3d Cir.1974), cert. denied, 421 U.s. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975), and such grounds "must be clearly substantiated by adequate proof." Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136, 139 (10th Cir.1966). Here, Burnley merely "ask[ed] the Court to give full consideration of uplifting its ORDER of May 14, 1990, and allow the Plaintiff to have at least two (2) civil actions pending at one time in this Court." Nowhere in the motion does Burnley set forth any grounds for granting the motion. In light of the burden of proof on the movant under Rule 60(b), we cannot say that the district court abused its discretion in denying Burnley's motion.
III.
Notwithstanding our determination that this Court lacks jurisdiction to consider the merits of the district court's initial order imposing the pre-filing review system on Burnley, we would observe that it does not appear that the district court abused its discretion in imposing the original order. It is well-established law in this circuit that a district court may establish a system of "pre-filing review of complaints brought by prisoners with a history of litigiousness." Flint v. Haynes, 651 F.2d 970, 974 (4th Cir.1981). In Graham v. Riddle, 554 F.2d 133, 134 (4th Cir.1977), this Court expressly upheld a pre-filing review system that denied in forma pauperis status to a frequent filer of frivolous complaints except upon good cause shown. The Court in Graham recognized that a district court has the power to control the litigiousness of individuals who choose to abuse the in forma pauperis system through a pre-fil-ing review system under the discretionary authority implicit in 28 U.S.C. § 1915(a). Id. at 135. Other circuits have also recognized the power of a district court to impose limits upon those who abuse the system. See, e.g., Cofield v. Alabama Pub. Serv. Comm'n, 936 F.2d 512, 518 (11th Cir.1991) (upholding district court's pre-fil-ing screening system); Abdul-Akbar v. Watson, 901 F.2d 329, 333 (3d Cir.1990) ("When a district court is confronted with a pattern of conduct from which it can only conclude that a litigant is intentionally abusing the judicial process and will continue to do so unless restrained, we believe it is entitled to resort to its power of injunction ... to protect its process."); Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986) ("There is strong precedent establishing the inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances."); Abdullah v. Gatto, 773 F.2d 487, 488 (2d Cir.1985) (recognizing the district court's authority to impose conditions upon litigants' ability to file in forma pauperis actions at will); Franklin v. Murphy, 745 F.2d 1221, 1231-32 (9th Cir.1984) (upholding order limiting prisoner to six in forma pauperis filings per year); In re Green, 669 F.2d 779, 787 (D.C.Cir.1981) (requiring prisoner to obtain leave of court to file civil cases); Green v. White, 616 F.2d 1054, 1055 (8th Cir.1980) (limiting petitioner’s in forma pauperis complaints to specific allegations of physical harm or threats). These cases all recognize the burden that litigious individuals place on the judicial system and reflect a balance between insuring access to the courts and controlling already overburdened dockets. The district court recognized these concerns, stating that “[i]t is apparent that Mr. Burnley must be subjected to a [pre-filing review] procedure in order to protect judicial resources and the rights of other litigants to have their cases expeditiously processed.” In light of Burnley’s propensity for litigation, it appears that the district court acted within its discretion in establishing the pre-filing review system.
IV.
Because we find that the district court did not abuse its discretion in denying Burnley’s Rule 60(b) motion, the decision of the district court is hereby affirmed.
AFFIRMED.
. In one case, styled John Rogers Burnley v. In re: William H. Burnley, et al., Burnley named twenty-seven defendants including “Unknown Named Illegal Owners on the Estate of William H. Burnley.” That case, and John Rogers Burn-ley v. Henry A. Kennon, in which Burnley named thirty-nine defendants, five of which were unknown or unnamed, are typical of his complaints.
. The district court noted in proposing the pre-filing review system that in one case alone, "Mr. Burnley has submitted reams of documents, some styled ‘amended complaint,’ others simply on complaint forms, which have now reached a standing height of three feet."
. The relevant portion of Burnley’s motion stated: "The Plaintiff ask the Court to give full consideration of uplifting its ORDER of May 14, 1990, and allow the Plaintiff to have at least two (2) civil actions pending at one time in this Court.”
. Burnley failed initially to appeal from the district court's order imposing the pre-filing review system. Therefore, the resolution of the jurisdictional question depends on which rule applies.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_appel1_5_2
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, et al., Plaintiffs/Appellees, v. The STATE OF WASHINGTON et al., Defendants/Appellants, The Don’t Bankrupt Washington Committee, Intervenor/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. The STATE OF WASHINGTON et al., Defendants/Appellants, The Don’t Bankrupt Washington Committee, Intervenor/Appellant.
No. CA 82-3404.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 10, 1982.
Decided Jan. 11, 1983.
Appeal Dismissed April 18, 1983.
See 103 S.Ct. 1762.
Jeffrey D. Goltz, Asst. Atty. Gen., Olympia, Wash., for defendants-appellants.
William R. Squires, III, Davies, Wright, Todd, Riese & Jones, Seattle, Wash., argued, Franklin P. Auwarter, Mayer, Brown, Platt, Chicago, 111., Richard K. Willard, Washington, D.C., for plaintiffs-appellees.
Before WRIGHT, ANDERSON and CANBY, Circuit Judges.
CANBY, Circuit Judge:
This case involves a challenge to the constitutionality of the Washington State Energy Financing Voter Approval Act, 1981 Wash.Laws (2d Ex.Sess.) ch. 6 (“Initiative 394”), as applied to three nuclear power plants currently under construction. The initial challenge was brought by three banks serving as trustees for holders of bonds previously issued to finance the construction of these projects. The Don’t Bankrupt Washington Committee (“Committee”), the original proponent of Initiative 394, was permitted to intervene. The United States then filed suit challenging the Initiative on behalf of the Bonneville Power Administration (“BPA”). The Committee was also permitted to intervene in that action and the two cases were consolidated.
Plaintiffs argued that initiative 394 violated various provisions of the federal and state constitutions. The district court held that the Initiative unconstitutionally impaired existing contractual obligations to finance and complete three nuclear power plants under construction. U.S. Const. Art. I, § 10. It did not reach the additional contentions presented. We affirm.
BACKGROUND
BPA is a federal agency charged with marketing the power produced from federal hydroelectric projects in the Columbia River Basin to 147 customers in the Pacific Northwest. In the 1960’s, BPA was faced with rapidly increasing demand for power and concluded that it would be unable to meet the future needs of its customers from existing facilities. As a result, BPA embarked upon a program under which certain of its customers were to build and operate the additional power plants needed to meet the anticipated demand. One segment of the program provided for BPA’s “preference customers” (public utilities and cooperatives) to construct power projects that would be integrated into BPA’s system without BPA’s owning or operating the projects.
The Washington Public Power Supply System (“WPPSS”) is the builder of three nuclear power plants to be operated by it as part of- the BPA program. WPPSS is a municipal corporation of the State of Washington known as a “joint operating agency.” It is comprised of 19 public utility districts and 4 municipalities, all of which are also political subdivisions of the State. During the early 1970’s WPPSS entered various agreements to enable it to build and operate the plants. Those agreements and the provisions of state law in existence at the time they were executed contain the obligations of contract allegedly impaired by Initiative 394. The agreements fall into three categories.
The first category consists of project agreements between BPA and WPPSS governing the construction and operation of each of the three plants. The project agreements allow BPA to oversee certain aspects of construction including budgets and termination. BPA is authorized to disapprove “significant action” taken by WPPSS if BPA concludes that the action is inconsistent with “Prudent Utility Practice.” If WPPSS and BPA are unable to agree on the proposed action, the matter is referred to an independent “project consultant.” The project consultant is authorized to resolve the dispute in accordance with the Prudent Utility Practice standard. There is little doubt that a decision not to finance the projects through to completion would be a “significant action” subject to disapproval if it did not meet the Prudent Utility Practice standard. In addition, the project agreements specifically obligate WPPSS to “use its best efforts to issue and sell bonds to finance the costs” of construction of each plant.
The second category of agreement entered by WPPSS consists of “Net Billing Agreements” between WPPSS, BPA and other “participants,” who are BPA customers. Like the project agreements, the Net Billing Agreements require WPPSS to construct and operate the plants in accordance with Prudent Utility Practice. They also make each participant liable for a share of the construction and financing costs of the project equal to that participant’s share of anticipated power output. Under the agreements, the participants assign their share of anticipated output to BPA in return for credit for an equal amount of power on their wholesale bill from BPA. BPA in turn assumes each participant’s obligation to pay its share of the construction and financing costs of the project. The result of the Net Billing Agreements, then, is that BPA receives essentially all the power to be produced by the three plants, and undertakes to pay the construction and financing costs of the projécts whether or not any power ultimately is produced by the plants. Those costs BPA would presumably pass on to its ratepayers throughout the Northwest. This obligation of BPA to pay the costs of constructing the plants regardless of output makes the protections of the project agreements extremely important to BPA. The project agreements enable BPA to prevent a termination of construction by WPPSS unless that termination is consistent with Prudent Utility Practice.
The third category of agreement entered by WPPSS consists of promises to bond purchasers, made in the form of bond resolutions and the state statutes giving them effect. WPPSS issued revenue bonds, payable solely from the income derived by WPPSS from its ownership and operation of the power plants. The bond resolutions assured bondholders that WPPSS was “duly authorized under all applicable laws to create and issue the bonds and to adopt [the resolutions].” The authorizing section of the resolutions permitted the issuance of future bonds “in such amounts and from time to time as may be required to pay the costs of construction.” The resolutions contain covenants by WPPSS that it would “take all lawful measures required to issue and sell” the additional bonds required to complete the project. WPPSS also agreed to “use its best efforts to issue and sell Bonds to finance the costs of the project and the completion thereof.” It covenanted that it would “proceed with all reasonable diligence to and will construct to completion the project and complete such construction at the earliest practical time.”
WPPSS’ promises to use best efforts to sell bonds and to proceed with diligence to completion are important to the bondholders, of course, because the bonds are payable from revenues produced by operation of the plants. It is true that the bondholders are also protected by BPA’s obligation under the Net Billing Agreements to pay the costs of construction including its financing, but that fact does not render the promises of completion unimportant to the bondholders. Sale of power is still an important source of repayment of the bonds. The bond resolutions themselves recognized that operation of each project is “essential to the payment and security of the Bonds.”
INITIATIVE 394
Initiative 394 was enacted at the Washington general election of November 3, 1981, in response to cost overruns and construction delays at five nuclear power plants then under simultaneous construction by WPPSS. Initiative 394 applies only to future projects and those projects still under construction as of July 1, 1982, that have exceeded their first official agency budget estimates by more than 200%. All three WPPSS power plants at issue here fall into the latter category.
The heart of the Initiative is contained in section 4. That section provides that no public agency may issue or sell bonds to finance construction or acquisition of any major public energy project “unless it has first obtained authority for the expenditure of the funds to be raised by the sale of such bonds for that project at an election” conducted in accordance with the Initiative. Other provisions of the Initiative require the public agency to hire an independent consultant to prepare a draft cost-effectiveness study, followed by a period of public comment and issuance of a final draft study. The election then is held and voters within the districts encompassed by the agency and its members are entitled to vote. Bonds may not be issued in excess of the amounts of funds authorized by the voters and, of course, if the proposal is voted down no bonds may issue at all.
The Initiative alters WPPSS’s functioning in two ways. Prior to the Initiative’s enactment there was no explicit requirement that WPPSS obtain cost-effectiveness studies for its projects. Arguably, however, such studies were encompassed in the “Prudent Utility Practice” standard which governed both WPPSS’s operation and BPA’s limited oversight of WPPSS. A more important change arises from the fact that the only pre-initiative statute governing WPPSS’ bond issuing authority was Wash. Rev.Code § 43.52.3411. That statute authorized WPPSS to issue bonds payable from the revenues of the utility projects whenever its board deemed it advisable. Initiative 394 accordingly imposes a substantial new hurdle to the sale of bonds essential to WPPSS’ completion of the three plants..Plaintiffs argue that by conditioning WPPSS’s ability to issue bonds on the outcome of a popular referendum, Initiative 394 impermissibly impairs WPPSS’s obligations under the project agreements, the Net.Billing Agreements, and the bond resolutions.
CONTRACTS CLAUSE
Article I, Section 10, Clause 1 of the United States Constitution provides: “No State shall... pass any... Law impairing the Obligation of Contracts.... ” To determine whether Initiative 394 violates the contract clause, we must address two major issues. First, we must determine whether the Initiative substantially impairs WPPSS’s contractual obligations to BPA or the bondholders. Second, we must determine whether the Initiative, if it substantially impairs those obligations, is nevertheless justified as a reasonable and necessary exercise of the State’s sovereign power. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978); United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977).
IMPAIRMENT
Defendants argue that Initiative 394 did not substantially impair any of WPPSS’s contractual obligations. Conceding that the Initiative does alter WPPSS’s ability to issue bonds, they contend that the possibility of such an alteration was contemplated at the time the agreements were made. If in fact the contracts in question did allow for such an alteration, then the Initiative does not substantially impair them. See Northwestern Nat’l Life Ins. Co. v. Tahoe Regional Planning Agency, 632 F.2d 104, 106 (9th Cir.1980). We do not agree, however, that the contracts can reasonably be read as contemplating the kind of alteration of WPPSS’s bonding authority effected by Initiative 394.
Defendants point to the provision of the bond resolutions in which WPPSS covenanted to “take all lawful measures required to issue and sell” the additional bonds (emphasis added). They also rely on the provision of the project agreements that promises that WPPSS will use its best efforts to sell bonds to finance completion provided “that in each case such Projects Bonds may then be legally issued and sold” (emphasis added). We realize that the defendants’ arguments, particularly with regard to the latter provision, are not without force. We nevertheless believe that both provisions may be read most reasonably as promises of compliance with regular and broadly applicable bonding requirements of the state for the issuance of bonds. It is less reasonable to interpret them as leave for the state to impose a more narrowly targeted requirement of success in a popular referendum as a condition for further bonding authority by WPPSS.
We confess that our conclusion is influenced by what we perceive as the central aspect of the agreements before us. The contracting parties agreed at the outset that additional power resources were needed. The object of the agreements was to provide those resources. WPPSS recognized the importance of completion to BPA and the bondholders, and BPA agreed in effect to repay the bonds regardless of whether the plants were completed. The bondholders therefore had a promise of payment even without the plants, but completion of the plants unquestionably will make more energy available to finance repayment. WPPSS agreed to finish the piants with all reasonable diligence, which it clearly cannot do without issuing more bonds. In a very practical sense, the promise of completion was the only consideration BPA received for agreeing to pay the construction and financing costs. Its entitlement to the energy produced — BPA’s sole benefit from the entire set of agreements— is rendered valueless if the plants are not completed. WPPSS’s ability to issue additional bonds was accordingly the centerpiece of the entire arrangement. We have difficulty reading the provisions of the contracts in a way that permits destruction of their primary purpose. A promise in a contract that gives one party the power “to deny or change the effect of the promise, is an absurdity.” United States Trust Co. v. New Jersey, 431 U.S. at 25 n. 23, 97 S.Ct. at 1519 n. 23 (quoting Murray v. Charleston, 96 U.S. 432, 445, 24 L.Ed. 760 (1877)).
Defendants also contend that there is no impairment because of Wash.Rev.Code § 43.52.3411 (“Section 3411”), the statute that authorizes agencies such as WPPSS to issue bonds. That statute provides that, with one exception not relevant here, “all the provisions of law as now or hereafter in effect relating to revenue bonds or warrants of public utility districts shall apply to revenue bonds or warrants issued by the joint operating agency including, without limitation, provisions relating to:... the time and place of payment of such bonds or warrants and the interest rate or rates thereon; the covenants that may be contained therein and the effect thereof....” Defendants focus on the words “now or hereafter” and contend that Section 3411 constitutes a reservation of state authority to make the changes imposed by Initiative 394. In our view, this contention overreads the statute.
The meaning and application of a state statute that is challenged as violating the contracts clause is a question of federal law. Coombes v. Getz, 285 U.S. 434, 441, 52 S.Ct. 435, 436, 76 L.Ed. 866 (1932); see American Toll Bridge Co. v. Railroad Comm’n, 307 U.S. 486, 490, 59 S.Ct. 948, 951, 83 L.Ed. 1414 (1939); Rapid Transit Corp. v. New York, 303 U.S. 573, 593, 58 S.Ct. 721, 731, 82 L.Ed. 1024 (1938). That rule necessarily extends to Section 3411 insofar as that statute dictates the application of Initiative 394 to the contracts in issue here.
The provisions of Section 3411 relied upon by defendants to establish a reservation of state power to modify contracts are ambiguous. The State has on occasion enacted statutes which explicitly exempted or subjected bond issues to the effects of subsequently enacted laws. Compare Wash.Rev.Code § 53.34.120 (state covenants not to limit or alter vested rights of certain specified bondholders) with Wash.Const. art. XII, § 1 (all laws relating to corporations may be altered at any time). Defendants argue that any ambiguity in the provisions at issue here should be resolved in favor of the State. We cannot agree. Although contracts which affect the public interest are interpreted so as to favor the State, when the State borrows money.the State is not acting entirely in its sovereign capacity. Thus, insofar as the purely financial aspects of the agreement are concerned, reservations are not to be lightly inferred. United States Trust v. New Jersey, 431 U.S. at 25 n. 23, 97 S.Ct. at 1519 n. 23; see Restatement (Second) of Contracts § 207 comment a.
We conclude that the effect of Section 3411 simply is to render applicable to future bond issues the requirements of state law then in existence so long as imposition of those requirements does not modify pre-existing contracts. We do not read it as a reservation of power applicable to the contracts at issue here. While the State unquestionably may reserve power to change some aspects of existing contracts, see Atlanta v. Metropolitan Atlanta Rapid Transit Authority, 636 F.2d 1084 (5th Cir.1981), the State has not specifically done so here. Moreover, to interpret Section 3411 as a broad reservation of power is not permissible when the statute is viewed in light of the contract clause. For example, Section 3411 could not sensibly be construed to permit the State to change by law the interest rates or redemption schedules applicable to previously issued bonds. See United States Trust Co. v. New Jersey, supra, 431 U.S. at 27-28, 97 S.Ct. at 1520-21. Section 3411 therefore cannot be applied as broadly and retrospectively as its literal language may suggest. It is a closer question whether it can be applied to allow the State to restrict a future bond issue in a manner contrary to the provisions of preexisting contracts. We conclude that it cannot be so applied, at least in the direction dictated by Initiative 394. Section 3411 may doubtless apply many of the technical requirements of the State’s bond laws to bonds issued by WPPSS in the future. Initiative 394 may itself be applied, so far as the contract clause is concerned, to future bond issues for projects not subject to the contractual constraints binding the projects in issue here. But Section 3411 does not, in our view, reserve to the State the power to apply Initiative 394 to the additional bond issues of WPPSS that were promised in the contracts before us, and that remain central to the accomplishment of their purpose.
Defendants argue that Initiative 394 did not simply affect financial obligations. They contend that it altered the structure of governance of one of the State’s political subdivisions, an act inherently within the sovereign’s power. The Initiative did alter the type of control the electorate could exercise over WPPSS. But the voters always had ultimate control, direct or indirect, over WPPSS by the power to elect its board. The Initiative simply altered the manner in which WPPSS can raise money. The new method does involve voter approval, but it is still the method of financing that is being altered.
Defendants also argue that a municipal corporation, such as WPPSS, remains subject to state regulation and cannot be allowed to contract itself out from state control. That argument misperceives the nature of the restriction on state action imposed by the contract clause. As a creature of the state a municipal corporation derives its power from the legislature. Once having granted certain powers to a municipal corporation, which in turn enters into binding contracts with third parties who have relied on the existence of those powers, the legislature (or here, the electorate) is not free to alter the corporation’s ability to perform. Louisiana ex rel. Hubert v. New Orleans, 215 U.S. 170, 175-78, 30 S.Ct. 40, 42-43, 54 L.Ed. 144 (1909); Wolff v. New Orleans, 103 U.S. 358, 365-68, 26 L.Ed. 395 (1880); see United States Trust, 431 U.S. at 24 n. 22, 97 S.Ct. at 1519 n. 22. WPPSS remains subject to state regulation, but if the State significantly alters WPPSS’s ability to perform previously negotiated agreements, it impairs obligations of contract.
Since we have concluded that neither the contracts themselves nor Wash. Rev.Code 43.52.3411 permit the state to modify the contractual obligations along the lines dictated by Initiative 394, we must next address the question whether Initiative 394 constitutes a substantial impairment of those obligations. It largely follows from what has already been said that the impairment is substantial. The issuance of additional bonds by WPPSS is essential to the performance of its contracts; it is particularly crucial to the obligation running from WPPSS to BPA. Pri- or to Initiative 394, the issuance of additional bonds was within the discretion of the board of directors of WPPSS. BPA had the right to ensure that the discretion was exercised in accordance with Prudent Utility Practice. An abandonment of the project was consequently likely to occur only if events caused such abandonment to be in BPA’s interests as a distributor of power. Initiative 394 adds a new and unpredictable element. Bonds necessary for completion of the projects can only be issued after approval of the proposed expenditure of the proceeds by the electorate at a popular referendum. No standard can be imposed on the electorate in exercising its decision, nor can it be subjected to any review. It can reject the proposal for any reason or no reason. The addition of the referendum requirement is, we conclude, a severe impairment that defeats the expectations of the parties under their contracts. See Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978).
Nor do we view Initiative 394 as an insubstantial impairment prior to the time that the voters actually turn down a proposed bond issue. Defendants argue that the district court made inadequate findings to support its conclusion that the very existence of Initiative 394 injured plaintiffs by lowering the market value of WPPSS bonds and thereby increasing the costs of construction. They also contend that there was no real loss to the bondholders because they still have BPA’s promise of payment. We need not fix with certainty, however, any loss in value of bonds caused by the existence of Initiative 394. It is sufficient that the additional requirements imposed by Initiative 394 impair the ability of WPPSS to carry out its covenants in the manner originally promised. United States Trust Co. v. New Jersey, supra, is conclusive on that point. In that case, the Supreme Court held that the fact that the bondholders’ security provision impaired by the state was of little value was irrelevant to the constitutional determination. Absent the payment of just compensation, the repeal of a particular security provision impaired an obligation of contract even though the bondholders might have retained other contractual security. 431 U.S. at 18-19, 97 S.Ct. at 1515-16. As in United States Trust, the covenants at issue here were not superfluous. Plaintiffs were promised financing of the plants to completion, subject only to contractually specified conditions. That promise was clearly an inducement to contract. Cf. El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965) (unlimited redemption period could be changed by statute to five year redemption period when original provision was not an inducement to contract). Plaintiffs were not compensated for modification of that central provision. Initiative 394 impairs the obligation by imposing the election requirement, and that requirement is a present injury not dependent on the outcome of such an election.
JUSTIFICATION
Having concluded that Initiative 394 does impair WPPSS’s contractual obligations, we must determine whether the degree of that impairment is both reasonable and necessary to achieve a valid state interest. United States Trust, supra 431 U.S. at 29, 97 S.Ct. at 1521. Our determination whether the State’s action is justified is affected by the fact that WPPSS is itself a political subdivision of the State, made up of other political subdivisions. We cannot view the contracts between WPPSS and the plaintiffs as those between private parties. Because the State is a contracting party, we give less deference to its claims of justification for impairment. Id. at 25-26, 97 S.Ct. at 1519-20.
We emphasize that the State has not attempted to justify Initiative 394 as an exercise of the State’s sovereign prerogative to protect the health and safety of its citizens. Considerations of health and safety did not give rise to the Initiative, and are not offered in justification of it. Instead, defendants propose five public purposes served by Initiative 394. Essentially the five reduce to three related goals: ensuring WPPSS’s public accountability; ensuring public accountability in all decisions affecting the energy and economic future of the State; and protecting the State’s finances by placing controls on WPPSS’s spending.
Achievement of public accountability is certainly a legitimate public purpose. It is not clear, however, that Initiative 394 is either reasonable or necessary to achieve it. The Initiative was not necessary to give the public control over either WPPSS or energy and economic decision-making generally. Through the election process, the voters have always had direct or indirect control of both. At least one alternative method of achieving public accountability has actually been adopted. See, e.g., 1982 Wash.Laws (1st Ex.Sess.) ch. 43 (requiring joint operating agencies to form executive boards with outside membership). Others remain available. Cost effectiveness studies can be required without being tied to an election requirement for the issuance of bonds previously promised. The existence of such alternative means of achieving accountability cast doubt on the validity of Initiative 394’s application to the obligations in issue here. See United States Trust Co., 431 U.S. at 29-31 & n. 28, 97 S.Ct. at 1521-22 & n. 28. Cf. El Paso v. Simmons, 379 U.S. 497, 516-17, 85 S.Ct. 577, 587-88,13 L.Ed.2d 446 (1965) (retroactive application “quite clearly necessary” to achieve state’s purpose.).
Limitation of public spending is also certainly a legitimate state goal, but its weight is diminished in contract clause analysis when the state limits its own previous financial commitments. As the Supreme Court declared in United States Trust:
[C]omplete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State’s self-interest is at stake. A governmental entity can always find a use for extra money, especially when taxes do not have to be raised. If a State could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contracts Clause would provide no protection at all.
431 U.S. at 26, 97 S.Ct. at 1519 (footnote omitted). These words are no less applicable when the purpose of an impairment is merely saving money, as here, rather than spending it for a broad public purpose (mass transportation) as in United States Trust. Reduced to bare essentials, the State’s financial argument in support of Initiative 394 is that completion of the projects as contracted by WPPSS had become too expensive.
Even in the light of the severe cost overruns and lengthy construction delays associated with the WPPSS projects, Initiative 394 does not appear to be a reasonable measure if applied to the contracts before us. The Initiative seems somewhat narrowly targeted to modify those very contracts, rather than being part of a broad public program with incidental impairing effects. In Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978), the Supreme Court invalidated a statute that altered the pension plan liabilities of employers who either terminated a pension plan or closed a Minnesota office. The statute, intended to protect discharged workers, essentially required the employer to assure all employees of at least ten years standing a full pension regardless of the vesting provisions of any existing plan. Stressing the fact that the severe disruption of contractual obligations was unexpected and served only a relatively narrow public interest, the Court held that not even the presumption, favoring legislative judgments as to necessity and reasonableness could save the act.
The Spannaus Court contrasted the facts of Home Building & Loan Ass’n. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), in which a temporary provision extending mortgage redemption periods was upheld. That emergency measure, enacted in response to the economic conditions of the 1930’s, protected a basic societal interest rather than a favored group. Moreover, it imposed reasonable conditions, many of which were designed to protect the creditors whose rights were affected.
Defendants argue that unlike Spannaus this case involves an area historically regulated by the State and that state regulation altering contractual obligations was therefore foreseeable. It is true that the State has historically regulated power production and the operation of its political subdivisions. The State’s regulation is not necessarily more foreseeable, however, than state regulation of a port authority and mass transportation involved in United States Trust, supra, where the State’s impairment of bond obligations was nevertheless struck down.
Defendants argue that the cost overruns and delays which prompted passage of the Initiative were of such a magnitude as to compare with the economic conditions present in Blaisdell. We cannot agree. The concerns addressed by the Initiative were not unknown in the early 1970’s. In Blaisdell the State, acting in its sovereign capacity adopted a balanced and temporary' measure designed to protect broad societal interests which were threatened by the unforeseeable collapse of the world economy. In contrast, Initiative 394 sacrifices the interest of parties to contracts with the State’s subdivision in order to protect the State’s own finances. We cannot conclude that this imposed sacrifice was reasonable in light of changed circumstances. Compare United States Trust, 431 U.S. at 31-32, 97 S.Ct. at 1522-23 with El Paso v. Simmons, 379 U.S. at 515, 85 S.Ct. at 587.
We therefore hold that the contract clause of the United States Constitution prohibits the application of Initiative 394 to the three WPPSS projects at issue in this appeal. Our disposition makes it unnecessary to address other grounds urged by plaintiffs in support of the district court’s decision. The judgment of the district court is AFFIRMED.
. Morgan Guaranty Trust Company of New York is bond fund trustee for bondholders of Project 1. Continental Illinois National Bank and Trust Company of Chicago is trustee for bondholders of Project 2. Seattle-First National Bank is trustee for bondholders of Project 3.
. WPPSS was created in 1957 pursuant to Wash.Rev.Code § 43.52.360 which provides, in part:
Any two or more cities or public utility districts or combinations thereof may form an operating agency (herein sometimes called joint operating agency) for the purpose of acquiring, constructing, operating and owning plants, systems and other facilities and extensions thereof, for the generation and/or transmission of electric energy and power. Each such agency shall be a municipal corporation of the state of Washington with the right to sue and be sued in its own name.
. There is also an ownership agreement for project Number 3.
. “Prudent Utility Practice” is defined in the project agreements as:
any of the practices, methods and acts, which, in the exercise of reasonable judgment in light of the facts (including but not limited to practices, methods and acts engaged in or approved by a significant portion of the electrical utility industry prior thereto) known at the time the decision was made, would have been expected to ¿ccomplish the desired result at the lowest reasonable cost consistent with reliability, safety and expedition.
Defendants argue that Prudent Utility Practice is a non-standard. The standard is quite flexible. The project agreements further state that “Prudent Utility Practice is not intended to be limited to the optimum practice, method or act, to the exclusion of all others, but rather to be a spectrum of possible practices, methods or acts.” We need not attempt to define its contours. It is sufficient to note that it is the standard to which the parties agreed.
. BPA will receive only 70% of the power from one of the plants (Number 3) at issue here because the remaining 30% is owned by nonparticipants.
. The bond resolutions stated that the bonds were revenue bonds to be paid solely from “income, revenues, receipts and profits derived by the Supply System through the ownership and operation by it of the project.”
. Two additional plants were begun after the three noted earlier. BPA was not involved in those projects and work on them has been halted for the time being.
. The original total estimated cost for all five WPPSS projects was approximately $4 billion. As of May 1981 the estimated total cost for the five projects was $24 billion. The original estimate for the three plants at issue here was $1.9 billion. As of May 1981 the estimated total cost for those three plants was $12 billion.
. The major provisions of Initiative 394 are the following:
New Section. Sec. 2.
The purpose of this chapter is to provide a mechanism for citizen review and approval of proposed financing for major public energy projects. The development of dependable and economic energy sources is of paramount importance to the citizens of the state, who have an interest in insuring that major public energy projects make the best use of limited financial resources. Because the construction of major public energy projects will significantly increase utility rates for all citizens, the people of the state hereby establish a process of voter approval for such projects. New. Section. Sec. 3.
The definitions set forth in this section apply throughout this chapter unless the context clearly requires otherwise.
* * * * * *
(2) “Major public energy project” means a plant or installation capable, or intended to be capable, of generating electricity in an amount greater than two hundred fifty megawatts. Where two or more such plants are located within the same geographic site, each plant shall be considered a major public energy project. An addition to an existing facility is not deemed to be a major energy project unless the addition itself is capable, or intended to be capable, of generating electricity in an amount greater than two hundred fifty megawatts. A project which is under construction on July 1, 1982, shall not be considered a major public energy project unless the official agency budget or estimate for total construction costs for the project as of July 1, 1982, is more than two hundred percent of the first official estimate of total construction costs as specified in the senate energy and utilities committee WPPSS inquiry report, volume one, January 12, 1981, and unless, as of July 1, 1982, the projected remaining costs of construction for that project exceeds two hundred million dollars.
* * * * * $
New Section. Sec. 4.
No public agency or assignee of a public agency may issue or sell bonds to finance the cost of construction or the cost of acquisition of a major public energy project, or any portion thereof, unless it has first obtained authority for the expenditure of the funds to-be raised by the sale of such bonds for that project at an election conducted in the manner provided in this chapter.
New Section. Sec. 5.
The election required under section 4 of this act shall be conducted in the manner provided in this section.
* * * * * *
(4) Prior to an election under this section, the applicant shall submit to the secretary of state a cost-effectiveness study, prepared by an independent consultant approved by the state finance committee, pertaining to the major public energy project under consideration. The study shall be available for public review and comment for thirty days. At the end of the thirty-day period, the applicant shall prepare a final draft of the study which includes the public comment, if any.
♦ * * * * *
New Section. Sec. 7.
A request for financing authority pursuant to this chapter shall be considered approved if it receives the approval of a majority of those voting on the request.
* * * * * *
New Section. Sec. 11.
Section 8 of this act shall take effect immediately. The remainder of this act shall take effect on July 1, 1982. Public agencies intending to submit a request for financing authority under this act are authorized to institute the procedures specified in section 5(4) of this act prior to the effective date of this act.
Filed January 20, 1981.
. The project agreements recite that the generating capacity of the plants would assist BPA in attaining the objectives of the Bonneville Power Act.
. The bond resolutions recognized that operation of each project was “essential to the payment and security of the bonds.”
. At oral argument defendants attempted to justify the Initiative in part because the large amounts of bonds issued by WPPSS had made it difficult for the State to sell its own bonds. Protecting the marketability of state-issued bonds is a valid state purpose, but the contract clause was intended to ensure that the State pursues that purpose in an evenhanded manner. Initiative 394 does not attempt to limit all private borrowing
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Appellee, v. Paul BAUER, Appellant.
No. 82-5346.
United States Court of Appeals, Fourth Circuit.
Argued May 13, 1983.
Decided Aug. 2, 1983.
Fred Warren Bennett, Federal Public Defender, Baltimore, Md. (Richard B. Bardos, Law Clerk on brief), for appellant.
Robert B. Green, Asst. U.S. Atty., Baltimore, Md. (J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellee.
Before RUSSELL, PHILLIPS and MURNAGHAN, Circuit Judges.
MURNAGHAN, Circuit Judge:
Paul Bauer was convicted, following a non-jury trial in the United States District Court for the District of Maryland, of a violation of 18 U.S.C. § 641. In its entirety, that statute provides:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted— Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum qf $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.
The indictment charged only, in accordance with the second paragraph, that “Bauer did knowingly and wilfully conceal and retain a thing of value in excess of $100.00 of the United States ... that is ... 234 ... Series E United States Savings Bonds having a face value of $7,350.00 with intent to convert them to his use and gain, ... knowing] that said items had been embezzled, stolen, purloined or converted.”
The consequence is a tortuous trail through words to determine whether the evidently bad acts of Bauer fell under paragraph 2 of § 641 as charged, or whether they at most amounted to some other crime for which Bauer was not indicted.
Between December 15, 1978 and January 2, 1979, breaking and entering occurred at the Baltimore, Maryland residence of Mr. and Mrs. Leo William Shifflett. Stolen were 234 United States Series E Savings Bonds having an aggregate face value of $7,350.00 registered in the names of the Shiffletts or of their daughter. The Shiffletts, in June 1979, having provided an indemnity bond, obtained replacement bonds. Thereupon the stolen bonds became the property of the United States.
Bauer on August 27, 1982 attempted to sell the stolen bonds. On apprehension he acknowledged having stolen them from the Shifflett residence.
I
First Bauer contends that the bonds, having been replaced, were not things of value. Their status as things concealed or retained by Bauer certainly could be inferred, he having had them when they were stolen and still three and one-half years later when he attempted to sell them. The thief clearly knew them to have been stolen. The argument of Bauer centers on the claim that the bonds had no value and that, consequently, the Government suffered no property loss. The fallacy, however, is apparent in the plain language of the statute which defines value as: “face, par, or market value, or cost price, either wholesale or retail, whichever is greater.” 18 U.S.C. § 641. Furthermore, Bauer’s expectation that he could sell the bonds, and his attempt to do so, in the circumstances of the ease, belie the contention that they were without value or were worth not more than $100
Bauer also points to the fact that § 641 punishes concealment or retention of a “thing of value of the United States ” (emphasis supplied), and emphasizes that the bonds when stolen were the property not of the United States but of the Shiffletts. However, concealment and retention continued up until the attempted sale in August 1982, a period lasting well beyond the time of the issuance of replacement bonds to the Shiffletts. Hence, while ownership shifted from the Shiffletts to the United States, in the course of the offense committed by Bauer, the status of the bonds as a thing of value remained undisturbed. The face value of the bonds did not change. Ownership, however, now was the Government’s, no longer the Shiffletts’.
Despite those substantial hurdles, Bauer has succeeded in locating authority to lend support to his position. United States v. Fleetwood, 489 F.Supp. 129 (D.Ore.l980). However, that case differs in an important, indeed a controlling, way. There the facts were extremely like those in Bauer’s case. The charge, under 18 U.S.C. § 641, was concealing and retaining stolen United States Savings Bonds and Freedom Share Notes. The stolen bonds had been replaced by the Government and were never cashed. However, the district judge in Fleetwood never alludes to, far less relies on, the regulation spelling out the property interest arising in the Government upon replacement of bonds following theft. That presumably is because the regulation was not called to the judge’s attention.
Making no claim under the predecessor regulation, the prosecution in Fleetwood was forced to argue a concept of retained general governmental possessory rights in indicia of claims of others against the Government, an issue which we, in light of the pertinent regulatory language, need not, and do not, address.
From the prosecution’s point of view, a helpful aspect in Fleetwood lies in the conclusion of the district judge that the crime was a continuing one, not confined in its occurrence to 1970 when the thefts occurred, but running on uninterruptedly until March 31, 1979. Thus, from and after the replacement of the bonds stolen by Bauer, and accompanying assumption of full property rights therein by the Government in June 1979, until August 27, 1982, a continuing crime against the Government was taking place, regardless of whether any such crime was made out for the period prior to June 1979.
Furthermore, Fleetwood accepts that valuation,- even though the Government had replaced the bonds in the hands of the victims, was determined by the face value of the bonds. See 489 F.Supp. at 134.
II
Bauer alternatively asserts that the two paragraphs of 18 U.S.C. § 641, one designed to punish embezzlement, theft, purloining or conversion, the other receipt, concealment or retention of property of the United States, are to be construed in such a way as to bar altogether the charging of the thief, whether or not he has ever been prosecuted for theft, with the crime of receiving, concealing or retaining. Bauer relies on the common law rule prohibiting conviction of a single individual, on the basis of the same events, for both (a) theft and (b) receiving stolen property. It may well be, but, fortunately, we are not called upon to decide, that the common law concept contemplates only a receiving offense commencing contemporaneously with the theft and asportation. Here, there was a substantial intervening period between theft on a day or days between December 15, 1978 and January 2, 1979, on the one hand, and the replacement of the stolen bonds by the Government in June of 1979, on the other. Furthermore, even if the bonds remained throughout, for our purposes here, things of value of the United States, concealment or retention is not necessarily identical with receiving. We perceive no indication that Congress, by silence, meant to import into the statutory framework of 18 U.S.C. § 641 the common law concept.
The person who steals a government truck may alternatively be convicted of receiving, concealing and retaining the vehicle. United States v. Trzcinski, 553 F.2d 851, 852 (3d Cir.1976), cert. denied, 431 U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977). The court for entirely convincing reasons “opt[ed] for a literal, rather than a historical reading of the statute” and decided that “a defendant may be convicted for the receipt and possession of stolen goods when the evidence discloses that he was in fact the thief.”
Acquittal of theft does not preclude conviction, on the basis of autrefois acquit, of the crime of receiving and retaining the stolen property. Gf. Phillips v. United States, 518 F.2d 108, 110 (4th Cir.1975) (en banc), remanded, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 728 (1976), 538 F.2d 586 (1976).
The case which Bauer asserts compels a contrary result is Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961). However, it only determined that conviction both for theft and for receipt of the stolen goods was impermissible. The holding was that conviction on either charge was permissible. Trzcinski, supra, at 853. That is quite different from Bauer’s contention that only one of the charges would properly lie in the first place.
Accordingly, the judgment is
AFFIRMED.
. 31 C.F.R. § 315.28 (1982):
Recovery or receipt of bond before or after relief is granted.
(a) Recovery prior to granting relief.
(b) Recovery subsequent to granting of relief. A bond for which relief has been granted is the property of the United States and, if recovered, must be promptly submitted to the Bureau of the Public Dept., Parkersburg, West Virginia 26101, for cancellation.
Bauer stipulated that:
Once the replacement bonds were delivered to Mr. and Mrs. Shifflett, the stolen bonds became the property of the United States pursuant to 31 C.F.R. Section 315.28(b).
. Bauer negotiated a sale for $4,500 with an undercover Government agent.
. See United States v. Carr, 706 F.2d 1108 (11th Cir.1983), a case brought to our attention after our opinion had been prepared and circulated, which effectively exposes the fallacy of Bauer’s contention. Carr also convincingly repudiates the assertion, discussed infra, that there was no proprietary interest in the United States in stolen savings bonds.
If the value were not in excess of $100, the maximum sentence would be a fine of $1,000 or imprisonment of one year, or both. The sentence imposed on Bauer was five years, with the last 4'/2 years suspended.
. Unawareness by Bauer that ownership had shifted to the United States did not affect guilt. “Knowledge that stolen property belonged to the government is not an element of the offense. The sole reason for including the requirement that the property belongs to the government is to state the foundation for federal jurisdiction.” Baker v. United States, 429 F.2d 1278, 1279 (9th Cir.1970), cert. denied, 400 U.S. 957, 91 S.Ct. 354, 27 L.Ed.2d 265 (1971).
. The regulation in its current form was not published for notice and comment until September 26, 1980, 45 Fed.Reg. 64,091 (September 26, 1980), whereas Fleetwood’s possession and hence his retention and concealment, terminated on March 31, 1979. The predecessor regulation did, however, provide: “A bond which is recovered after relief therefor has been granted belongs to the United States.... ” 31 C.F.R. § 315.28 (1979).
. Cf. United States v. Alberico, 604 F.2d 1315, 1321-22 (10th Cir.1979).
. W. LaFave & A. Scott, Criminal Law 689 (1972).
. The time passage consideration is one that should not be lost sight of. In Fleetwood, supra, nine years had elapsed before the thief was identified. The statute of limitations is five years. 18 U.S.C. § 3282. Yet the attempt to dispose of the stolen property for gain occurred only on March 31, 1979. Upon discovery of his identity, he was promptly indicted, the district court decision having been rendered on April 29, 1980. It would have yielded a bizarre result to hold that, first, the defendant, as the one who stole the bonds, was insulated by the lapse of five years from conviction for theft under paragraph 1 of 18 U.S.C. § 641, and, second, that he, being the thief, because of mutual exclusivity, could not even be charged under paragraph 2 of concealing and retaining, which he had continued to do until a very recent time before his indictment and prosecution.
Indeed, if Bauer is correct, as he might well be, that until the replacement bonds were issued there was no sufficient property interest in the United States to support a theft conviction, see Fleetwood, supra, he will have discovered a glaring loophole. From the very outset he could not be convicted under paragraph 1 of § 641 for theft because of the absence of a jurisdictional predicate, namely, a thing of value of the United States. Also, from the outset, he would, as the thief, not fall within the terms of § 641 paragraph 2.
. It is to be noted that 18 U.S.C. § 641 speaks in the alternative: “Whoever receives, conceals or retains ...” (emphasis supplied), and that only concealment and retention were charged in the indictment. See, however, United States v. Sellers, 520 F.2d 1281, 1286 (4th Cir.1975), vacated, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 728 (1976), modified, 547 F.2d 785 (4th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977) (“We are unpersuaded by the Government’s proffered distinction between ‘receiving’ and ‘possession’ .... ”); see also United States v. Minchew, 417 F.2d 218, 219 (5th Cir.1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1246, 25 L.Ed.2d 427 (1970):
The holding [that a person cannot be convicted and punished for both stealing Government property and for receiving the same property] probably includes concealing and retaining the stolen property.
We are not presented, however, with an attempt to convict Bauer of both. Minchew, for our purposes, confirms that the Government may elect to charge, and obtain a conviction for, either theft or for receiving, concealing or retaining. That is to say that the crimes are not mutually exclusive. They are only noncumulative. Cf. Sellers, supra, at 786: [United States v.] Gaddis [424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976) ] provides that instructions may be given on both the theft and the possession counts, but that convictions may not be sustained on both counts arising out of the same set of facts.
. The principle underlying the concept that a thief would not “receive” stolen goods from himself “is based either upon the theory of avoiding the infliction of a double penalty or ' upon the philosophic consideration that a single act may not constitute both the larceny and the receiving.... [T]he question [under 18 U.S.C. § 641] is one of statutory construction, not common law distinctions.” United States v. Trzcinski, 553 F.2d 851, 853 (3d Cir.1976), cert. denied, 431 U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977).
In all events, the critical word is both. The Government has not sought to charge Bauer with theft. Upon affirmance of his conviction for concealing and retaining, double jeopardy will preclude a prosecution for theft, because of the dual punishment implications.
Double jeopardy would not, however, preclude prosecution under a two-count indictment charging (a) theft and (b) retaining and concealing. It would simply forestall convictions under both. Gaddis, supra, 424 U.S. at 550, 96 S.Ct. at 1027.
. Such is also the holding in Phillips, supra.
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_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Gaylord OLSON, Defendant-Appellant.
No. 71-1617.
United States Court of Appeals, Ninth Circuit.
Sept. 13, 1971.
Gerard J. Glass, San Francisco, Cal., for defendant-appellant.
James L. Browning, U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Before KOELSCH and CHOY, Circuit Judges, and POWELL, District Judge.
Honorable Charles L. Powell, Chief Judge, United States District Court for the Eastern District of Washington, sitting by designation.
CHOY, Circuit Judge:
Lawrence Olson appeals his conviction for refusal to submit to induction. We affirm.
On October 11, 1966, Olson enrolled in Shasta Junior College and subsequently received a II-S student deferment. In 1967, he transferred to Cabrillo Junior College, and the II-S was continued. At the completion of his second year in college, his first at Cabrillo, Olson had completed 58% units, which fell short of the 60 units required by Cabrillo for junior college graduation after two years.
In December, 1968, Olson’s Local Board found that he was not “satisfactorily pursuing a full-time course of instruction” within the meaning of 32 C.F.B. sec. 1625.25 and reclassified him I-A. One day after the expiration of the thirty-day appeal period, Olson asked for an appeal and a personal appearance before the Board. The Board granted the appeal, but refused a personal interview. The I-A was upheld on appeal, and Olson was ordered to report for induction. He failed to do so, and was reordered to report. He did so, but refused to take the symbolic step forward. Olson was then indicted and convicted.
The Local Board was correct in revoking Olson’s II-S and reclassifying him I-A. Olson enrolled in a two-year college in October, 1966, and in October, 1968, should have completed the full 60-credit program required to graduate. He did not. Olson had four years from 1966 to obtain his baccalaureate degree; the letter sent by Tahoe College in 1969, attesting that he was enrolled as a full-time third-year student at that institution and would graduate in 1971, confirmed that he could not do so.
The Selective Service System recognizes that the four-year requirement need not be rigidly applied when a student transfers from a junior or community college to a four-year school. Local Board Memorandum No. 43, issued by the Director of Selective Service, provides :
“When a registrant transfers from a junior college or community college to a degree granting institution, and loses credit through no fault of his own, he may have less than the percent of course completion required in Regulation) 1625.25(c). * * * The local board may, in its discretion, grant a II-S deferment for the first year after transfer. * * * ”
But this Memorandum does not help Olson. First, the II-S deferment is discretionary with the Local Board. It need not be given. Second, the Memorandum applies only when a registrant transfers from a junior to a four-year institution and loses credit in that transition. Olson lost his credits in his move from Shasta Junior College to Cabrillo Junior College, or during his enrollment at either school. Finally, Olson has not proved that he lost his credits through no fault of his own.
Whether a student is “satisfactorily pursuing a full-time course of instruction” is a question of fact. In resolving that question, the main source of information and evidence is generally the college administration. “When a college cannot certify that the registrant is expected to graduate on time, certainly a local board would have a basis in fact for terminating the [II-S] deferment.” Coleman v. Tolson, 435 F.2d 1062, 1064 (4th Cir., 1970). Olson could not graduate in time. The Local Board was correct in revoking his II-S. United States v. Brooks, 415 F.2d 502 (6th Cir., 1969).
There is no evidence in the record to indicate that the Board’s refusal to reopen Olson’s classification when it received the Tahoe College letter was punitive in nature. Since Olson had not presented a prima facie case warranting reopening his classification, the Board’s refusal to do so was not illegal.
Finally, Olson cites United States v. Karlock, 427 F.2d 156 (9th Cir., 1970), and urges that once the Board had waived the thirty-day appeal requirement and allowed his appeal, it was also obligated to grant him a personal appearance. We find Karlock distinguishable. Karlock brought a new classification request to his board’s attention; and once it had agreed to entertain that new classification request, it had an obligation to afford the registrant an opportunity for both local and appeals board review. Here, Olson was continuously contesting the validity of the revocation of his II-S. To extend Karlock to such a situation is unwarranted. The Board’s decision here to bestow one benefit does not require it to bestow another.
Affirmed.
. (a) In Class II-S shall be placed any registrant who has requested such deferment and who is satisfactorily pursuing a full-time course of instruction at a college, * !! * such deferment shall continue until such registrant * * * fails to pursue satisfactorily a full-time course of instruction. * * *
(b) A student shall be deemed to be “satisfactorily pursuing a full-time course of instruction” when, during his academic year, lie has earned, as a minimum, ei'edits toward his degree which, when added to any credits earned during prior academic years, represent a proportion of the total number required to earn his degree at least equal to the proportion which the number of academic years completed bears to the normal number of years established by the school to obtain such degree. For example, a student pursuing a four-year course should have earned 25% of the credits required for his baccalaureate degree at the end of his first academic year, 50% at the end of his second academic year, and 75% at the end of his third academic year.
. Nor dill the Tahoe College letter constitute a prima facie case warranting reopening Olson’s classification. 32 C.F.R. sec. 1625.4; Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Bd.2d 362 (1970). The letter confirmed the fact that Olson had not completed his second academic year according to the terms of the Regulations. Since Olson’s academic year terminated in October, 1968, United States v. Brandt, 435 F.2d 324 (9th Cir., 1970), a prima facie case would have to show that at that time Olson had completed 50% of the credits needed to graduate in 1970. The Tahoe College letter did not show that.
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_pretrial
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's rulings on pre-trial procedure favor the appellant?" This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
THE DENALI. PACIFIC COAST COAL CO. v. ALASKA S. S. CO. UNITED STATES v. SAME.
No. 8963.
Circuit Court of Appeals, Ninth Circuit.
June 30, 1939.
MATHEWS, Circuit Judge, dissenting in part.
J. Charles Dennis, U. S. Atty., and F. A. Pellegrini, Asst. U. S. Atty., both of Seattle, Wash., for the United States.
T. Catesby Jones, James W. Ryan, and Bigham, Englar, Jones & Houston, all of New York City, and Lane Summers and Hayden, Merritt, Summers & Bucey, all of Seattle, Wash., for appellant Pacific Coast Coal Co. et al.
Lawrence Bogle, Cassius E. Gates, Stanley B. Long, and Bogle, Bogle & Gates, all of Seattle, Wash., for appellee.
Before DENMAN, MATHEWS, and HEALY, Circuit Judges.
DENMAN, Circuit Judge.
This is an appeal by claimants, owners of cargo shipped on the steamer Denali, from a decree of the district court exonerating the Alaska Steamship Company, the Denali’s owner, from liability for the total loss of their cargo in the stranding of that steamer on a submerged reef in the Caamano Passage,, British Columbia, on a voyage from Seattle, Washington, to Alaskan ports. The ■ proceedings commenced in a petition of the Steamship Company, filed September 4, 1935, for the limitation of and exoneration from liability provided by the Limitation Statutes, 46 U. S.C.A. § 183 et seq., and the Supreme Court Admiralty Rules, 28 U.S.C.A. following section 723. Appraisement was duly made of ship and pending freight, a stipulation of their values given, and the jurisdictional requirements of the statute and rules have been complied with.
The cargo claimants seek to establish as error in the decree appealed from its failure to hold (A) that the vessel violated the Act of May 11, 1918, Chapter 72, 40 Stat. 548-550, 46 U.S.C.A. §§ 222, 223, 235, in that the stranding was caused by the negligent navigation of the mate in charge of navigation, who was required by the Steamship Company to serve and, in fact, was serving at the time of the stranding in violation of the “three-watch” division of the mates’ period of navigating service required by the statute; (R) that the vessel was unseaworthy because of defective compasses existing at the time of the commencement of the voyage, which a proper inspection would have disclosed, and which defect causatively contributed to the stranding; (C) that the ship was un- . seaworthy as to her charts, and the absence of a proper chart of Caamano Passage causatively contributed to the collision; (D) that the owner had privity in and knowledge of the violation of the statute with regard to the watch system of the mates and of her unseaworthiness as to compasses and charts and hence was not entitled to a limitation of liability; and (E) that the Steamship Company had failed to use due diligence to make the vessel seaworthy and hence was not entitled to the benefit of the Harter Act, 46 U.S.C.A. § 192.
(B and C) With regard to the cargo-owners’ charges respecting the compasses and charts, the district court, on conflicting evidence, decided that the vessel was not unseaworthy as to either and that neither the character of the charts nor compasses causatively contributed to the stranding. We so hold.
(A) Regarding the claimed violation, of the Act of May 11, 1918, Chapter 72, supra, of the three watch provisions for the Denali’s mates, that act makes it unlawful for a vessel to be navigated unless she have a “complement of licensed officers * * * necessary for her safe navigation”. It provides: “No vessel of the United States subject to the provisions of this title [chapter or chapters 14 or 15] or to the inspection laws of the United States shall be navigated unless she shall have in her service and on board such complement of licensed officers and crew including certificated lifeboat men, separately stated, as may in the judgment of the local inspectors who inspect the vessel be necessary for her safe navigation. The local inspectors shall make in the certificate of inspection of the vessel an entry of such complement of officers and crew including certificated lifeboat men, separately stated, which may be changed from time to time by indorsement on such certificate by local inspectors by reason of change of conditions or employment. * * 46 U.S.C.A. § 222. (Emphasis supplied.)
What constitutes such a complement of mates is provided by Section 2 of the Act, 46 U.S.C. § 223, 46 U.S.C.A. § 223. For a steamer of over 1000 gross tons, such as the Denali, to have a “complement of licensed officers” there must be something more than the mere “number” of mates entered in the certificate of inspection, ff the vessel have a “complement” of mates they must satisfy a “scale” requiring that they “shall stand in three watches while such vessel is being navigated”. Section 2 provides: “That the board of local inspectors shall make an entry in the certificate of inspection of every ocean and coastwise seagoing merchant vessel of the United States propelled by machinery, and every ocean-going vessel carrying passengers, the minimum number of licensed deck officers required for her safe navigation according to the following scale:
“That no such vessel shall be navigated unless she shall have on board and in her service one duly licensed master.
“That every such vessel of one thousand gross tons and over, propelled by machinery, shall have in her service and on board three licensed mates, who shall stand in three watches while such vessel is being navigated, unless such vessel is engaged in a run of less than four hundred miles from the port of departure to the port of final destination, then such vessel shall have two licensed mates; and every vessel of two hundred gross tons and less than one thousand gross tons, propelled by machinery, shall have two licensed mates.
(Emphasis supplied.)
The inspectors’ statutory duty with regard to the complement requirement of Section 1, as detailed in Section 2, ends in the entry on their certificate of the “minimum number” of mates. (Emphasis supplied). The so-called “scale” itself prescribes for the vessel the necessary watch function of the mates when so numbered. The three-watch requirement for the mates would be meaningless as a safety provision if a vessel of over 1,000 gross tons could be considered as having satisfied the statutory duty by having a complement of mates sufficient in number, but who are required by the owner to stand on a two-watch instead of a three-watch division, when the vessel is being navigated. In re Pacific Mail S. S. Co., 9 Cir., 130 F. 76, 82, 69 L.R.A. 71.
Apart from the plain phraseology of the Act, we have the administrative practice of the Department of Commerce, shown in its printed forms of its certificates of inspection which provide only for the entry of the number of mates and make no repetition' of the statutory command that they shall stand in three watches. That command is directly from the statute to the vessel and her owner.
The word “watch” in maritime parlance has two meanings. It refers to the division of the day into time periods of service of the officers and crew, and also to the division of such persons for that service. By immemorial Anglo-Saxon maritime custom, the time period of a watch never exceeds four hours.
When a vessel’s three mates are divided into three watches in each of which stands but one of three mates, the watch time of each mate will be 8 hours a day, served in watches not exceeding 4 hours each. The Congressional intent was to make impossible the former “watch and watch” system in which the crew was divided into two watches “starboard” and “port”, so named because the former had their bunks on the starboard side of the forecastle and the latter on the port side. In the two watch system, the total number of sailors of each grade was divided by two, and if there was an odd man he was assigned to the port watch. The starboard or captain’s watch was usually commanded by the captain, though sometimes by the second mate. The port watch was commanded by the first mate. Under the two watch system the crew and officers commanding them stood on watch twelve hours a day.
Since the statute itself describes its purposes to be for safe navigation, and since there would be no gain in avoiding disaster to the ship from fatigue in her navigating officers were the watches so divided that one of the mates was required to stand twelve hours navigating service in time periods exceeding four hours each, and since by long established custom the work of men on watches is equally divided, we hold that so far as concerns mates on watch and navigating the vessel the statute prohibits her navigation if they serve more than eight hours a day. Cf. O’Hara v. Luckenbach S. S. Co., 269 U.S. 364, 370 et seq., 46 S.Ct. 157, 70 L.Ed. 313.
The three-watch 8 hour limitation is a specific provision for mates while the vessel is navigating. Hence it prevails over a general provision in Section 3 of the Act applying to all licensed officers, limiting their service to 12 hours a day.
The question then is, Did the Denali have a complement of three mates who were to obey the statute and stand in three watches while the vessel was being navigated? The evidence is overwhelming that she did not.
The Denali, as stated by the Steamship Company’s brief, had four licensed mates. They were the first, second and third mates, and pilot Obert. Obert is admitted by that brief to have been “used” by the Steamship Company as the fourth mate. It is Obert’s and the third mate’s watch service time which is of paramount importance here, because Obert was navigating the vessel with the third mate’s assistance when the disaster occurred. The first mate stood no regular watch on the voyage in question and this was the custom on the Steamship Company’s 19 vessels in the Alaska trade, though he occasionally relieved the Captain and second mate.
As we have seen, the second mate and third mate and the pilot “used” as a mate, each should have served but 8 hours a day. Concerning the former two’s actual time of service, the captain testified that the second and third mates were “required” to serve 8 hours in two “compulsory” watches but “customarily” and “voluntarily” they served a longer time in another watch.
This is surprising testimony. Knowing something of the modern sailor and the watchfulness of corporate managers over their labor costs, this maritime court wonders how long the second and third mate would have held their jobs if they failed “customarily” and “voluntarily” to violate the provisions of this safety statute and in a third or fourth watch period serve over its required time. What this customary violation of the statute consisted of is plainly inferable from the captain’s testimony :
“Q. It has been the practice of the Alaska Steamship Company for many years on freighters like this for the master and the pilot to stand alternate watches of six hours, is that right? A. Yes.
“Q. And during the master’s watch the second mate stands with him, is that right? A. Yes.
“Q. And during the pilot’s watch the third mate stands with him? A. Yes.
“Q. Who was in charge of the watch during the time that the pilot and third mate were on the bridge, that is the, the 6:00 to 12:00 watch ? A. The pilot and third mate were not on the 6:00 and 12:00 watch.
“Q. On the 12:00 to 6:00 watch, I should have said. A. On the 12:00 to 6:00 watch the pilot was in charge.
“Q The third mate took orders from the pilot? A. Yes, sir.
“Q. On all subjects? A. Yes, sir.
“Q. And during the 6:00 to 12:00 watch, who was in charge of the watch? A. The master.
“Q. And the second mate took orders from you? A. Yes, sir.
* * *
“Q. And then at noon — from noon to 6:00 P. M. on that date, Thursday, May 16, 1935, were Pilot Obert and the third mate on watch? A. Yes, sir, Obert and the third officer.”
We conclude that in each 24 hours the second and third mates each in fact stood more than 8 hours watch duty in three or more 4 hour watch periods.
With regard to the remaining mate, that is Pilot Obert, “used” as mate, the testimony is uncontradicted that his watch service was 12 hours a day, stood in two 6 hour periods, — that is to say, in two full 4 hour watch periods and extending 2 hours each into two other 4 hour watches. That is the method in which the ship was navigated and it is a matter of indifference whether it was by compulsion or in part by the acceptance of the owner of a service from the mates which was customary and voluntary. We hold that as to the second and third mates and Obert, the substituted mate, the owner was operating the vessel in violation of the three watch provisions of the statute.
The plain intent of the statute is that for a steamer of over 1000 gross tons there shall be at least four officers, the captain and the three mates, who shall share the burden of navigating her. The first mate, we have seen, had no regular navigating watch duty. Here, by the command of the Steamship Company, the vessel was sent oh her dangerous voyage with two of the four, the second and third mates, prohibited from navigating her wherever any risk to her was involved. This exclusion of two of the statutory four navigating officers is by an order of the Steamship Company, General Order number 13, issued to all masters:
“To all Masters and Pilots:
“April 4th, 1934.
“General Order.
“The practice of many of our Pilots leaving the bridge while the ship is under way has resulted in some serious accidents.
“Effective this date, excepting when the steamer is on the Gulf or in open water, never leave the ship in charge of second or third officers when approaching land and changing courses. These men are good officers but lack experience.
“The Master will see that this order is carried out and fully understood by all concerned.
“C. A. Glasscock,
“Port Captain.”
(Emphasis supplied.)
The vessel was wrecked by the fault of navigation of the substitute mate Obert,' who was “assisted” by the third mate, who acted under Obert’s orders. Since both men were' serving under a watch system used in violation of th’e statute, the burden falls on the Denali’s owner of showing not merely that the two watch system probably did not but that it could not have contributed to the stranding. The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148; Lie v. San Francisco & Portland S. S. Co., 243 U.S. 291, 298, 37 S.Ct. 270, 61 L.Ed. 726; The Silver Palm, 9 Cir., 94 F.2d 754, 759; The Eagle Wing, D.C., 135 F. 826, 832, affirmed 4 Cir., 162 F. 882; The Henry O. Barrett, 3 Cir., 161 F. 481, 485, certiorari denied 212 U.S. 573, 29 S.Ct. 683, 53 L.Ed. 656.
As this court, in reviewing and summarizing the cases, has said concerning this extraordinary burden of proof on violators of statutes governing vessels and their navigation and management, “Failure to obey a statute does, indeed, penalize the violator. The penalty, however, is not that the violator is to be held accountable for any mishap, regardless of its relation to the violation. The rule simply is that the violator is penalized with the burden of showing that the violation not only probably did not cause the accident, but that it could not have done so. This burden it is frequently extremely difficult, if not impossible, for the violator to discharge, in the nature of things; and therein lies the true penalty imposed upon him.” (Emphasis supplied.) The Princess Sophia, 9 Cir., 61 F.2d 339, 347.
Whether or not the Steamship Company has been able to satisfy this extraordinary burden of proof requires a consideration of the character of the voyage on which it dispatched the Denali. Her voyage from Seattle to Alaska was by the so-called “outside passage”. Her departure from Seattle was so timed that she was likely to be and was in fact required to steam from open waters and turn from a general north northwesterly course to a northerly course through Caamano Passage, in the early morning darkness, made the more difficult of navigation, as stated by the Steamship Company and as shown- by the log, by a hazy condition of the atmosphere.
The testimony is that so great are the dangers of Caamano Passage that 90 percent of the vessels steaming to Alaska avoid the outside passage route. The southern end of Caamano Passage, which the Denali was approaching, is between Dundas Island on the east and Zayas Island on the west. At the entrance of the Passage the shores of the two islands are about 2% miles apart, but rocks and submerged reefs off each island narrow the passage to 1% miles. There are no lights to guide the navigator.
The danger from the sunken reefs is greatly enhanced by powerful tidal currents, at this time running out the Passage and across the course of the Denali. The pilot-mate states the currents there were very “irregular” and unknown to him and unpredictable because not shown on any “pilot books or Coast Pilot or^ current books”. It is obvious that successive bearings in a cross-current of unknown force and unascertainable exactness of direction, taken by observing the hazy loom of some observable land, would have none of the certainty in determining the ship’s course that they have in currentless waters and clear weather. The unknown force and angle of the current makes an incalculable shift in the base line for the four point bearing necessary for exact observation.
As the Denali approached the passage it was planned by the pilot-mate to guide his vessel by ail observation of Prince Lebo Island, lying to the easterly of his course and about an hour’s steaming time to the south of the Passage. In the haze and darkness this was unobservable. Over an hour before the stranding, Obert, 62 years of age and obliged to wear glasses, abandoned his compass and stood at the open window of his pilot house straining his eyesight in the dark haze to guide his vessel clear of the reefs menacing the mouth of the channel. He said he had the loom only of Zayas Island and he could see “not plain” the 1200 to 1500 feet high peaks of Dundas Island. Thrown into increasing uncertainty by the current, which he miscalculated three tunes, and thus required him to make three changes of course in his attempts to reach the unseen channel, it is apparent that the Denali s safety was wholly dependent upon the mate s acuteness of observation, concentration and rapidity of judgment and celerity and accuracy of command to his helmsman. That he was unsuccessful and wrecked his vessel on a submerged reef off Zayas Island at the channel entrance is not surprising.
This 62 year old substitute for the first mate had navigated the ship for 12 hours in the preceding 24. If he had stood the first mate’s statutory time he would have served but 8 hours. The purpose of limiting the mates’ watches is to avoid fatigue, and the burden is on the owner to show that the 4 hour excess of effort in violation of the statute could not have contributed to the miscalculation in the hour of anxiety and strain which brought the vessel’s destruction.
With this difficult burden of proof on the Steamship Company, it offers no testimony at all on the general health and suryiving physical vigor of Obert, well past fog middle age. More significant, the Steamship Company did not ask Obert, its 0wn witness, nor did he testify, whether or not he feit fatigued from his 12 hours 0f service as both pilot and mate in the preceding 24 hours — significant because every admiralty lawyer knows the heavy burden on his owner-client where a statutory command is violated in the navigation of its vessel.
Similarly with regard to Obert’s asgigtant, the third mate, also a witness for the Steamship Company. By the Company’s orders he was prohibited from navigating the Denali except in the Gulf of Alaska and in open waters. He attempted to verify for his navigating mate the location of the vessel in the changing bearings 0f the dimly looming islands, as the vessel proceeded in the unknown current and darkness. It is evident that he had miscalculated a bearing he was asked to take on Zayas Island, for, shortly after he reported it, Obert thought they were clear 0f fhe reef and entering the channel,
Though the third mate was straining his and mind in hig duty of servi 0bert) after a violation of the statute by Hs ious hours of excess work t the c askcd him no tion and he no testimony concerning his physi„ cal Qr mental condition during the period of stress preceding the vessel’s destruction,
We hold that the Steamship Cornpany has not maintained its burden of proof that the violation of the statute could not have contributed to the disaster, and tkat tke carg0 was iost by tbe Company’s faujt
(D) With regard to a limitation of liability under the statute granting it, if the loss occurred without the Steamship Cornpany’s “privity or knowledge” the burden of proof is on it to establish their absence. The Silver Palm, 9 Cir., 94 F.2d 776, 777, and cases cited;
In the circumstances of this case, the quantum of that burden is the same as that heretofore discussed. Section 1 of the Act of May 11, 1918, provides that “No vessel [such as the Denali] * * * shall be navigated”, et cetera, with her mates regulated as to their watches in violation of Section 2 of the Act, as here found. During the entire voyage, including the navigation leading to the stranding, the navigation of the vessel was in violation of this command of the statute by the act of the Company’s management. This violation by the Company itself was participated in by Obert, as an agent; commanded by the petitioner for limitation to violate the statute. Here is both privity and knowledge. It is not conceivable that the Congress intended to give to such wrongdoing shipowners the extraordinary relief of the limitation act, with a less burden of proof relative to the effect of their wrongdoings, than for other violations of statutes for the safety of life and property at sea. Hence the extreme burden of proof of the Pennsylvania and Lie cases, supra, rested on the Company to show that its privity in and knowledge of the violation of the statute could not have contributed to the stranding. As shown it has not made such proof. We hold that the Steamship Company is not entitled to limit its liability to the owners of the cargo under the provisions of the Limitation of Liability statute and that the district court erred in its findings and decision to the contrary.
(E) With regard to the defense of the Harter Act, the burden is on the Steamship Company to establish concerning the Denali that it had exercised “due diligence to make the vessel in all respects seaworthy and properly manned, equipped, and supplied,”. May v. Hamburg, etc., 290 U.S. 333, 346, 54 S.Ct. 162, 164, 78 L.Ed. 348. No such diligence has been exercised where there exists on all the Company’s Alaska fleet such a customary violation of the three watch mandate for the mates as was permitted to exist on the Denali. The Steamship Company is not entitled to invoke the provisions of the Harter Act against the claims of the cargo owners.
The Steamship Company is liable to the owners of the cargo injured or lost by the stranding of the Denali and the amount of their damage should be ascertained and decreed to them against the Steamship Company.
Reversed.
Just as all the International Rules of Navigation, 33 U.S.C.A. § 61 et seq., are commands to the owner, though in text they are but directions for the navigation, of the vessel and do not mention the owner, so here the owner violates the statute if his vessel is navigated without its required complement of officers. Cf. In re Pacific Mail S. S. Co., 9 Cir., 130 F. 76, 81, 69 L.R.A. 71, where the owner was held liable under a similar statute which made the requirement regarding the officers and crew on the vessel and did not mention the owner.
“See. 3 [§ 234]. That it shall be unlawful for the master, owner, agent, or other person having authority to permit an officer of any vessel to take charge of the deck watch of the vessel upon leaving or immediately after leaving port, unless such officer shall have had at least six hours off duty within the twelve hours immediately preceding the time of sailing, and no licensed officer on any ocean or coastwise vessel shall be required to do duty to exceed nine hours of any twenty-four while in port, including the date of arrival, or more than twelve hours of any twenty-four at sea, except in a case of emergency when life or property is endangered. Any violation of this section shall subject the person or persons guilty thereof to a penalty of §100. 46 U.S.C.A. § 235.
Limitation of Liability Act, 46 U.S.C.A. § 183. “§ 183. Liability of Owner not to Bcuceed Interest. The liability of the owner of any vessel, 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 in no case exceed the amount or value of the interest of such owner in such vessel, and her. freight then pending. (R.S. § 4283.)”
Harter Act, 46 U.S.C.A. § 192. “§ 192. Limitation of Liability for Errors of Navigation, Dangers of the Sea and, Acts of God. If the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel * * * ”.
Question: Did the court's rulings on pre-trial procedure favor the appellant? This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_casetyp1_7-3-3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
Martin J. McDONOUGH, Plaintiff, Appellant, v. HARDWARE DEALERS MUTUAL FIRE INSURANCE COMPANY, Defendant, Appellee.
No. 71-1142.
United States Court of Appeals, First Circuit.
Sept. 30, 1971.
Philip D. Epstein, Boston, Mass., with whom Epstein, Goldstein & Feldman, Boston, Mass., was on brief, for appellant.
John E. Lecomte, Boston, Mass., for appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
ALDRICH, Chief Judge.
Plaintiff McDonough is the owner of a building insured under a standard Massachusetts fire policy issued by the defendant. A fire occurred nearby which required some 700,000 gallons of water to extinguish. Some of this water flowed onto plaintiff’s land, damaging the building. Defendant conceded, correctly, see Jiannetti v. National Fire Ins. Co. of Hartford, 1931, 277 Mass. 434, 438, 178 N.E. 640, that it was liable for this damage. Much of the water, however, went underground where, allegedly, after a number of months, it weakened the foundations, causing the building to settle and crack. The defendant denied liability for this additional loss. Plaintiff invoked arbitration of damage under the standard clause which, for nearly 100 years has been required to be a part of Massachusetts fire policies. Mass.G.L. c. 175 § 99. The referees admitted all of plaintiff’s evidence and found for him in the amount claimed. Defendant refused to pay. In the present action removed to the district court because of diversity of citizenship, plaintiff sought to recover on the award. The district court held that two provisions in the policy were, respectively, totally and partially fatal to his claim. We start with the former.
Section C4 of Article V of the policy provided in part,
“V. EXCLUSIONS
This policy does not insure against: ******
C. Loss caused by, resulting from, contributed to or aggravated by any of the following: ******
4. water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basement or other floors, or through doors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors; unless loss by fire or explosion, as insured against hereunder, ensues, and then this Company shall then be liable only for such ensuing loss.”
The court found that this subparagraph, if read “literally,” was “unambiguous” in the company’s favor. It went on to say that this construction “is quite as reasonable as the restricted construction urged by plaintiff,” and held for the defendant. This was the wrong approach. If there is a reasonable construction of the policy other than the literal one which is more favorable to the insured, under familiar principles he is entitled to it. See Marston v. American Employers Ins. Co., 1 Cir., 1971, 439 F.2d 1035, 1039; Insurance Co. of North America v. Newtowne Mfg. Co., 1 Cir., 1951, 187 F.2d 675, 682.
We believe the exclusion effected by subparagraph C4 is reasonably open to a more restricted construction than that contended for by the company. Contrary to the court’s narrow focusing upon this subparagraph, it should have considered Article V as a whole. Most of Article V in referring to water designates water which could not conceivably have resulted from fire. That being the general tenor of the other subparagraphs, it is natural to read this inference into subparagraphs C4, having in mind that water resulting from a fire is normally within the policy. Such a reading could have been easily avoided, if a different concept was intended, by adding thereto the simple words, “whether resulting from fire or not.” Under these circumstances, the policy appears to us to be ambiguous. See Gaunt v. John Hancock Mut. Life Ins. Co., 2 Cir., 1947, 160 F.2d 599, 601 (L. Hand, J.). It is not enough to say, as did the district court, that the reading contended for by the company makes for ease and simplicity of application. The company draws the policy, and must plainly provide, particularly with regard to exclusions, Vappi & Co. v. Aetna Cas. & Surety Co., 1965, 348 Mass. 427, 431, 204 N.E.2d 273, what it wants.
It follows that plaintiff was properly permitted to prove that the underground water damage came from water discharged by the fire trucks. We need not determine whether on the evidence, he sufficiently did so, however, because we agree with the district court that part of the claim he was permitted to establish was not recoverable by reason of another provision in the policy. We find no ambiguity in Article II (“Property Not Covered”) § D. Inasmuch as the referees admitted evidence as to matters within, and therefore excluded by, this clause, and made no separation in their findings, their award cannot stand. The case must be resubmitted. See 14 Couch, Insurance, § 50,290 (2d ed.).
With respect to the amount stipulated by the parties for damages admitted by the defendant, we note and endorse the parties’ stipulation that interest shall run from April 8, 1967. The same date should apply as to any additionally established award.
A final matter. Having written the policy without protest to the Massachusetts Insurance Commissioner for his act in approving the form requiring it to contain an arbitration clause, and having proceeded to arbitration without complaint, defendant now wishes us to hold the clause unconstitutional. We cannot comprehend such a belated claim. We may add that even had it been raised seasonably, and in the proper forum, defendant would appear to have a very heavy burden.
The judgment of the district court is vacated and the cause is remanded with directions to enter an order consistent herewith.
. The other Article V exclusions relating to water exclude “flood, surface water, waves, tidal water or tidal wave, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not,” and “water which backs up through sewers or drains.”
. “D. The cost of excavations; foundations of building (s) which are below the under surface of the lowest basement floor, or where there is no basement, which are below the surface of the ground; foundations of machinery or boilers and engines which are below the surface of the ground ; underground flues, pipes, wiring and drains; sidewalks or driveways; piling for building(s) or wharf property below the low water mark.”
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
|
songer_stpolicy
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
The AETNA CASUALTY AND SURETY COMPANY, Defendant, Appellant, v. GUARANTY BANK AND TRUST COMPANY, Plaintiff, Appellee.
No. 6797.
United States Court of Appeals First Circuit.
Heard Nov. 9, 1966.
Decided Dec. 20, 1966.
Richard Wait, Boston, Mass., and Elmer W. Beasley, Hartford, Conn., with whom Choate, Hall & Stewart, Boston, Mass., was on brief, for appellant.
Francis P. O’Connor, Worchester, Mass., with whom John P. Dunn, Worchester, Mass., was on brief, for appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
OPINION OF THE COURT.
McENTEE, Circuit Judge.
The sole issue raised by this appeal is whether a loss suffered by plaintiff bank is within the coverage of a Bankers Blanket Bond which was in full force and effect between the bank and the defendant, Aetna, at the time the loss occurred. The trial court, sitting without a jury, found that the loss in question was within the coverage of the bond and entered judgment for plaintiff. Defendant’s appeal followed. The court’s findings are based for the most part on a statement of agreed facts filed by the parties.
Plaintiff’s loss resulted from the peculations of one Morse who from 1956 until November 1961 was office manager of a Webster, Massachusetts firm known as Sandler-ette. This firm was a customer of the bank. One of Morse’s duties as office manager was to prepare for deposit checks received by and made payable to the company. This entailed placing a rubber stamp! endorsement on all such checks and delivering them to the bank for deposit, which he had authority to do. During the period above mentioned, Morse wrongfully cashed 172 of these checks, totalling some $810,000, and misappropriated the money to his own use. These checks were cashed by plaintiff bank and the money delivered to Morse over the counter, in exchange for the checks.
The parties have agreed that when Morse telephoned the bank to arrange for delivery of the cash in exchange for the checks, wrongfully cashed, it was his intention to misappropriate this cash to his own use; that this was his intention when he went to the bank and obtained the cash; also that when this cash was delivered to Morse it was the intention of the teller or tellers to deliver it to him for the use and purposes of Sandlerette and that the teller or tellers made these deliveries of cash to Morse in reliance upon his representations over the telephone. It was further agreed that no one connected with Sandler-ette ever told any officer or teller of the bank that Morse had the right or duty to cash checks made payable to this company. Also that the two tellers who cashed most of these checks had been told by the bank and knew that they were not authorized to cash checks payable to corporate payees without special, authorization from an officer of the bank.
Sandler-ette first learned of its office manager’s nefarious actions on November 28, 1961, and on that date alerted the bank. The next day (November 29), although not yet aware of the extent of the misappropriations, Sandler-ette made formal demand upon the bank for the amounts it had paid Morse in exchange for these checks. The bank, in turn, gave Aetna formal notice of claim by letter dated December 8, 1961.
Sandler-ette lost no time in proceeding against Morse. Immediately, it brought a bill in equity against him, his wife and a corporation owned by them to trace the stolen money. As a result of the final decree entered in that case, certain assets standing in the name of this corporation were transferred to Sandlerette. Subsequently, the corporation went into bankruptcy and Sandler-ette realized on these assets in that proceeding. Thereafter, at the instance of his former employer, Morse was indicted and later pleaded guilty to charges of larceny.
The bank not having complied with the above mentioned demand for payment, Sandler-ette brought suit against it to recover the proceeds of the checks it claimed the bank wrongfully paid to Morse. The parties in that ease entered into a stipulation in which they incorporated as exhibits the pertinent documents in the three actions above mentioned. This stipulation, together with said exhibits, by agreement of the parties is now part of the record in the instant case.
With this background, we now focus our attention on defendant Aetna’s activities, particularly with reference to the Sandler-ette claim against the bank. The record indicates that with reference to this claim, Aetna was much more than a by-stander and had a real stake in the outcome of the litigation that followed. During the trial the bank notified Aetna that it could settle Sandlerette’s case for $130,000. Shortly thereafter the case was settled for that amount and a neither party agreement was filed in court. The bank then demanded indemnity against the payment of this settlement, plus counsel fees and expenses incurred in defending the Sandler-ette suit. Aetna refused to pay and thereupon the instant suit was commenced.
For the purposes of this case, the losses covered by defendant Aetna’s bond are as follows:
“(B) Any loss of Property [the term ‘property’ includes money] through robbery, burglary, common-law or statutory larceny, theft, false pretenses, holdup, misplacement, mysterious unexplainable disappearance, damage thereto or destruction thereof, whether effected with or without violence or with or without negligence on the part of any of the Employees. * * *»
Basically, the question of coverage of the bank’s loss in this case depends upon our determination of whose money was stolen.
Aetna contends (1) that the money stolen by Morse was Sandler-ette’s money — not the bank’s and (2) that in any event the bank did not comply with the notice or proof of loss requirements of the bond, both of which are conditions precedent to recovery. Its principal argument in support of the first contention is that the decree entered in the above-mentioned equity suit, the order in the bankruptcy proceedings and the judgments of conviction judicially established that the money stolen by Morse belonged to Sandler-ette. From this Aetna concludes that the determinations made in these three actions were conclusive against the bank not only in the Sandler-ette suit but also in the instant suit. The short answer to this argument is that the plaintiff bank here was not a party nor was it privy to a party in any of these prior proceedings (nor was Aetna) and, therefore, is not bound by them.
Aetna attempts in still another way to establish that the money stolen belonged to Sandler-ette. It advances the argument that when the parties in the instant case adopted the stipulation, entered into in the suit between Sandlerette and the bank, the facts stated in the exhibits attached to that stipulation were also accepted as proved — therefore the bank agreed that the money stolen belonged to Sandler-ette. From a mere reading of the stipulation it is plain that although the parties thereto agreed to accept as proved the facts stated in the stipulation, they agreed only to the existence and the authenticity of these exhibits, i. e., that they were true copies of the original documents. Thus, when the bank and Aetna adopted that stipulation they went no further than did the parties in the earlier case.
Aetna argues that Sandler-ette ratified Morse’s unauthorized acceptance of the cash as a matter of law (1) by causing him to be prosecuted for larceny of its property and (2) by proceeding in equity to trace its misappropriated funds. Aetna maintains that by so doing, Sandler-ette treated the bank’s payments to Morse as payments to itself. From this it concludes that Sandler-ette was the owner of the proceeds of these checks and that the bank is thereby precluded from showing in this action that Morse stole its money.
This argument appears to be predicated upon the theory that Sandlerette received some benefit by taking the action it did to have Morse prosecuted for larceny of its property. It is difficult to see how Sandler-ette in doing this received or accepted the kind of tangible benefit recognized for ratification purposes under Massachusetts law. Restatement, Agency 2d; Mass.Annot. § 98; Cambridgeport Sav. Bank v. City of Boston, 297 Mass. 309, 8 N.E.2d 790, 792 (1937); Accord, Kidder v. Greenman, 283 Mass. 601, 187 N.E. 42, 49, 88 A.L.R. 1370 (1933). Nor does Sandler-ette’s above-mentioned tracing action amount to a ratification as a matter of law. This suit is equally consistent with the theory that Morse gained possession of the checks in question by reason of his fiduciary relationship with his employer; that he wrongfully converted these checks to his own use, thus making him a trustee ex maleficio of the proceeds thereof for the benefit of Sandler-ette. Bresnihan v. Sheehan, 125 Mass. 11 (1878); cf. Berenson v. Nirenstein, 326 Mass. 285, 93 N.E.2d 610, 20 A.L.R.2d 1136 (1950). Since the final decree entered in that case recites only that Morse is indebted to Sandler-ette, we have no basis for inferring that any theory of recovery other than that above stated was relied upon.
We are not impressed by Aetna’s further argument that the bank suffered no loss until it paid the $130,000 to Sandler-ette; that this being a judicially imposed liability, it is not a loss within the coverage of the bond. Clearly, every time Morse wrongfully cashed his employer’s checks, the bank paid out its money to him over the counter and thereby suffered a loss at that time. Eliot Savings Bank v. Aetna Casualty & Surety Co., 310 Mass. 355, 38 N.E.2d 59 (1941). The $130,000 settlement merely determined the total amount of the bank’s loss, sustained by reason of Morse’s earlier defalcations.
The notice provisions of the bond read as follows: “At the earliest practicable moment after discovery of any loss hereunder the Insured shall give the Underwriter written notice thereof and shall also within six months after such discovery furnish to the Underwriter affirmative proof of loss with full particulars.” (Emphasis ours) With reference to the notice question, the parties agree that the bank “ * * * has complied with the bond provisions relating to notice and proof of loss except that if the plaintiff [bank] was required thereby to furnish oral or written notice of proof of loss prior to November 29, 1961, no such notice or proof of loss was furnished by the plaintiff [bank] to the defendant [Aetna] prior to that date.”
In our opinion the bank was not required to give notice or furnish proof of loss to Aetna prior to November 29, 1961. It learned of Morse’s unlawful conduct on November 28, 1961, upon receipt of a telephone call from Sandler-ette. As far as the bank is concerned, the time of discovery of a loss, within the meaning of the bond, was the next day (November 29) when the bank first received a written demand for payment from Sandler-ette. Therefore the earliest practicable time the bank could have given Aetna any notice or proof of loss was on that date. We, therefore, reject Aetna’s contention that the bank did not comply with the notice requirements of the bond.
All other points raised have been considered and found to be without merit.
Affirmed.
. Originally this bond ran to the First National Bank of Webster, the original plaintiff in this case. Subsequently, all the rights of that bank were assigned to Guaranty Bank and Trust Company under a consolidation and the latter named Bank was substituted as plaintiff.
. See district court’s opinion, First National Bank of Webster v. Aetna Casualty & Sur. Co., 256 F.Supp. 266 (D.Mass. 1966).
. This judgment was for $138,725, plus interest. It was agreed by the parties that if the court decided for plaintiff it would be entitled to recover the amount of its loss ($130,000), plus $8,725 for expenses incurred in defending a prior suit arising out of this loss, plus interest. The prior litigation is discussed later on in this opinion.
. During this period Morse cashed other cheeks at the bank but these were drawn by Sandler-ette and made payable to cash, petty cash or to named employees. They never exceeded $300. None of these cheeks are involved in this case. Although there were occasions when the bank paid out cash to Morse without prior arrangement, more often the cash was paid out after a telephone call from Morse to the bank. With reference to the smaller checks, above mentioned and also the checks which Morse wrongfully cashed, he would call the bank and state the amount of cash wanted and the specific denominations. On some occasions he would state that the cash was wanted for various company purposes which he described but on other occasions he said nothing as to why it was wanted. The teller would' then place the requested cash in envelopes with Sandler-ette’s name on them and notations of the amounts therein. When Morse came for the cash he would present a check or cheeks in the exact amount of the cash previously requested. These checks were totalled to see that they equalled the amount of cash in the envelopes. When this was done the envelopes were delivered to Morse.
On the 172 checks wrongfully cashed, Morse signed his name (below the rubber stamp endorsement) as required by rule of the bank when cash is paid out on checks payable to corporate payees. It should be noted that Morse had no written authorization to sign, cash, or to endorse checks made payable to Sandler-ette except for deposit.
. Only seven of these checks were cashed by a third teller — not included in the stipulation.
. Of course none of the checks in question went through Sandler-ette’s account. They were processed by the bank and routed to the drawee banks for payment. Upon payment by the drawee bank, plaintiff bank did not credit Sandler-ette’s account. When the company billed a customer for merchandise sold, the original invoice was sent to the customer and copies were kept by the company for its records. Morse had access to these records and in most instances destroyed all copies of invoices in the case of customers whose checks he wrongfully cashed. Thus the company had no record of such invoices and in this way Morse was able to avoid detection for as long as he did.
. Morse had spent a large part of the stolen money in the construction of a bowling alley complex through his alter-ego — the corporation. Some of it was spent on a house in which he and his wife lived.
. The decree, order and judgments of conviction, as the case may be, entered in all three of these actions were founded on the proposition that the money stolen by Morse was Sandler-ette’s money.
. This, suit was brought in the Superior Court of Massachusetts for Worcester County. ''
. These included the bill of complaint and final decree in the equity case; a certain stipulation, order and petition in the bankruptcy proceeding and the records of the proceedings in the criminal cases against Morse.
. Prior to the filing of Sandler-ette’s suit against the bank, Aetna attended numerous meetings with these parties. While that suit was pending the bank and Aetna conferred frequently regarding the conduct of the litigation. The bank tendered Aetna the defense of the suit but it refused to accept it. Also at numerous times during the trial the bank discussed settlement of the case with Aetna.
. In reply, Aetna wrote the bank that in the event the bank concluded this proposed settlement and then sued Aetna on its indemnity bond, Aetna in that suit would not take the position that this proposed settlement was not fair, reasonable, bona fide or prudent and further agreed that the bank may treat the neither party agreement executed in settlement of the ease as the equivalent of a judgment for plaintiff in the Massachusetts Superior Court entered after a full trial. Aetna reserved its rights, however, on whether any loss claimed by the bank was covered by its bond.
. Aetna’s bond also indemnified the bank against the payment of court costs, and reasonable attorney’s fees incurred in defending any suit against the bank arising out of any loss covered by the bond. The reasonableness of these expenses is not questioned in this case.
. If the money stolen was Sandler-ette’s, the loss does not come within the coverage of this bond.
. See footnote 10.
. This demand was made by letter dated November 29, 1961, sent by certified mail —return receipt requested and presumably was received by the bank on that date.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_casetyp1_7-3-5
|
I
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits".
EASTON PUB. CO. v. FEDERAL COMMUNICATIONS COMMISSION (ALLENTOWN BROADCASTING CORPORATION et al., Intervenors).
No. 9829.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 18, 1948.
Decided May 4, 1949.
Mr. Eliot C. Lovett, Washington, D. C., for appellant.
Mr. Richard A. Solomon, Counsel, Federal Communications Commission, Washington, D. C., with whom Mr. Benedict P. Cot-tone, General Counsel, Federal Communications Commission, Mr. Max Goldman, Acting Assistant General Counsel, Federal Communications Commission, and Miss Mary Jane Morris, Counsel, Federal Communications Commission, Washington, D. C., were on the brief, for appellee. Mr. Paul Dobin, Counsel, Federal Communications Commission, Washington, D. C., also entered an appearance for appellee.
Mr. Donald C. Beelar, Washington, D. C., with whom Messrs. Louis G. Caldwell and R. Russell Eagan, Washington, D. C., were on the brief, for intervenor Allentown Broadcasting Corporation. Mr. Reed T. Rollo, Washington, D. C., also entered an appearance for intervenor Allentown Broadcasting Corporation.
Messrs. Geo. O. Sutton, William Thomson and John H. Midlen, Washington, D. C., entered appearances for intervenor Associated Broadcasters, Inc.
Before STEPHENS, Chief Judge, and PRETTYMAN and PROCTOR, Circuit Judges.
PRETTYMAN, Circuit Judge.
This is an appeal from a decision of the Federal Communications Commission. Four applications for an unlimited-time standard broadcast station in the general area of Allentown-Easton, Pennsylvania, were made to the Commission. The various applications were mutually exclusive. They were consolidated for hearing, evidence was taken, and a proposed decision was promulgated. Exceptions were entered, briefs were filed, and oral argument was presented. Thereafter the Commission announced its findings of fact, conclusions and decision. Petition for rehearing was filed and denied, a memorandum opinion accompanying the final order.
The successful applicant was the Allentown Broadcasting Corporation. Appellant is the Easton Publishing Company. Allentown and Easton are rival cities, so far as this proceeding is concerned, located fourteen miles apart.
The controversy hinges upon that section of the statute which provides:
“In considering applications for licenses, and modifications and renewals thereof, when and insofar as there is demand for the same, the Commission shall make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same.”
Each of the two cities here involved is surrounded by a built-up community of some size. Allentown is about three times the size of Easton, by various standards of measurement, and the same approximate proportion holds if the respective communities are also considered. Allentown already has one standard broadcast station of unlimited time, with 5,000 watts (5 kw.) power. Easton also has one, with 250 watts power. Allentown has, or has under authorization, two more daytime-only stations. Easton gets primary service in the daytime from a New York station.
The case involves a comparative consideration of two communities and of two applicants. In the growing field of radio broadcasting, as more and more frequencies become available and more and more mutually exclusive applications are filed, these comparative hearings and judgments assume greater and greater 'importance. It is important that the procedural essentials for the cases be established, so that the Commission, may proceed with certainty upon its tasks, the courts may perform their review functions without unnecessary impediment to the expeditious disposition of the cases, and potential applicants for licenses and parties to the disputes may know with all possible certainty what the applicable rules are.
The Supreme Court made clear in its opinion in Federal Communications. Comm’n v. Sanders Bros. Radio Station that Congress intended to make broadcasting a competitive business, and that the usual rules relating to the certification of public utilities do not apply. It said (309 U.S. at 475, 60 S.Ct. at page 697, 84 L.Ed. 869) : “In short, the broadcasting field is open to anyone, provided there be an available frequency over which he can broadcast without interference to others, if he shows his competency, the adequacy of his equipment, and financial ability to make good use of the assigned channel.” Under that view of the statute, the public interest, convenience and necessity to which the Act refers are served by effective competition among strong competitors. Competition, of course, is between broadcasters on different frequencies covering the same area. If there be only one applicant for a given frequency in a given area, the community need for a new station and the relative ability, above the minimum requirements, of the applicant to render service are immaterial. But, if a choice must be made between two qualified applicants, the problem has a different aspect. And, if a choice must be made between two communities, still further considerations are involved. In the latter case, the public interest and an equitable distribution of service may well require a determination of the relative needs of the communities for more service and the relative abilities of the applicants to meet the greater need. In Johnston Broadcasting Co. v. Federal Communications Comm’n, 175 F.2d 351, decided today, we have reaffirmed, in respect to comparative determinations, the requirements laid down in Saginaw Broadcasting Co. v. Federal Communications Comm. and Tri-State Broadcasting Co. v. Federal Communications Comm. as essential to valid administrative orders. The present case presents a further phase of the same problem.
The requirement of the statute that the decision of the Commission be not arbitrary is as vital in a choice 'between communities or applicants as it is in the ascertainment of bare qualifications for a license. Indeed, the need for well-founded judgment in a comparative consideration may be even greater, from the practical point of view, than is such need in a mere affirmation of minimum qualities. If an applicant has not the bare minimum qualifications for a license, no great harm is done by its denial. But a choice between two well-qualified applicants necessarily means a substantial economic denial as well as an economic award. And, in respect to competing communities, the award means denial to one as it means advantage to the other.
The requirement that a choice be premised upon findings of fact which make clear the reason for the choice and make the choice a rational conclusion from the facts, sometimes presents difficulty, because, conceivably, there may be little difference in fact between applicants or between communities. Indeed, it is possible that to an outsider’s eye there is no distinguishing factual difference. Conceivably, the choice of either of two applicants or two communities might be within the realm of reason upon the facts. This is true whether the problem be approached from the standpoint of positive characteristics or from the standpoint of comparative need. Two communities may have the same need, or neither may need more service. The courts cannot hold that a new station license must be denied merely because there is no compelling factual difference between the applicants. ^ In such a case, the Commission would indeed have wide discretion. The important task of the courts in that event would be to insure that the factual situation had been fully explored. In that respect, as we pointed out in the Johnston Broadcasting case, supra, the Commission and the court must necessarily rely upon the industry and ability of the competitors for the license.
In the case before us, the Commission stated the basis upon which it acted. It said:
“Upon consideration of the size of the two cities, the existing facilities of each and the amount of radio service available to each, we conclude that Allentown is in greater need of another radio station than Easton; that its need for another radio station is greater than Easton’s need for extended services from its existing station, WEST; and that the purposes of Section 307(b) of the Communications Act would be better served by a grant to one of the Allentown applicants than by a grant to either of the Easton applicants.”
It made detailed findings of the power, frequency, type and time of.the existing and authorized stations and service. It found that each community had one full-time station, that the larger community also had two daytime-only stations, and that the smaller community had daytime primary service from a station outside the area. It described, by findings, each of the applicants and the proposed programs of each. So much is clear.
What facts did the Commission fail to find? As we have pointed out, we cannot assume that there are facts not found. We must look to appellant’s contentions to ascertain whether there were any omissions. Appellant is explicit. First, it says that the statute requires the Commission to consider the power and hours of operation of existing stations and that it has not done so; that the comparative results obtained by evaluating the power and hours of operation of the various stations 'by a point system (i. e., by assigning point values to each feature of each station and thus arriving at comparative composite totals) compels a conclusion contrary to that reached by the Commission. Second, it says that the Commission must find the type of service available to the two communities from the standpoint of present and proposed program^ so as to justify its conclusion that one community has greater need than the other for a new station. Third, it says that the Commission was required to value FM service the same as it valued AM service in making its conclusion. We must consider whether the Commission was required to make the findings thus suggested by appellant.
The Commission made basic findings as to the power, time of operation, etc., of each station, and recited that it gave consideration to these existing facilities and the amount of radio service available to each community. It did not point out how much, or in what fashion, it gave weight to these factors of power and hours of operation. The Commission denies that it should or could do so.
There is no mutually acceptable system of evaluation for these features of radio service, so far as we are advised, and no method is submitted to us with the assertion or suggestion that, if adopted, it would produce - accurate, ■ conclusive results. To devise such a method or formula would seem to us to be a task, if not impossible, at least of infinite complexity. By way of simple example, we refer to two features of this case. Appellant would assign no value to the primary service which Easton receives in the daytime from the New York station. The Commission says that if there be an evaluation of community radio service, service from outside the area should :be assigned full value according to its power. The whole of a comparative mathematical evaluation of the service presently available to the two communities might well depend upon how much or how little value would' be assigned the service from the outside station. It would seem clear that if there were no service in this area except that coming in from the outside to Easton, so that Easton had that service and Allentown had none, Allentown should get the new station. Likewise, it would seem clear that- if Allentown had a local station, usable for local expression and local news, and Easton had none, Easton should get the new station. Those would be conclusions of reasonableness, quite apart from scientific demonstration. But by what combination of variables one would assign a mathematical value to a service from a source outside-the community, we could not say. And! since no system or formula is advanced with the claim that it would produce sound results, we cannot require the Commission to> devise one.
Again, appellant would assign each station one factor in direct proportion to its power. That could not be accurate evaluation, in our view. For, to the people in the immediate community, one power is of like value as another, so long as it renders primary service. Here a-gain we could not say by what combination of variables the service indicated 'by station power may be measured. And, again, no standard of measurement avowed to be accurate is presented to us.
Earlier statutes provided for a determination by formula. But experience with that effort demonstrated its unfeasibility, and the law was, therefore,-changed to its present form upon the plea of the Commission. That change must be heeded. We conclude upon this point that the Commission was not required to make a mathematical evaluation of existing service.
Appellant’s next contention is that the Commission should have made findings as to the service presently available to each community in terms of radio programs. The Commission concluded, as its statement shows, that “Allentown is in greater need of another radio station than Easton”Moreover, says appellant, the Commission should also have found which applicant would more effectively supply that need, if greater need be found in Allentown. We-agree with appellant on this point. We cannot tell from the findings what caused the Commission to say that Allentown’s need' was greater. Present and proposed programs would seem to be an essential element in testing comparative community needs from the standpoints of both the receivers and the broadcasters. Appellant urges the point as a factor of weight which was proved in this case. The record contained evidence upon the programs. The Commission made findings as to the composition and character of the program proposals of the two applicants. But it gave no indication of their comparative qualities, or of the lack of any particular type of service in either community, or of the greater ability of either applicant to meet that need.
It may be that the Commission measured the comparative need by the comparative size of the communities. But difference in size does not necessarily spell a difference in need. It is not the court’s function to fashion from the evidence the established facts, and from the facts the conclusion. The court looks at the conclusion found by the Commission merely to see that it falls within the perimeter of reason drawn by the findings; and at the findings to see that they have support of substance in the evidence. In the case before us, we cannot tell why the Commission concluded that Allentown had greater need for a new station than did Easton; or, if Allentown’s need was greater, why it concluded that the intervenor would supply that need to a greater extent than would the appellant. Therefore, we cannot tell whether the conclusion of greater need by Allentown and the award to intervenor were or were not arbitrary. The case must therefore be remanded for findings upon this phase.
Appellant’s next point is that the Commission was required by Section 307(b) of the statute, above quoted, to take into account existing FM, as well as standard (AM), stations in determining the location of a new standard station.
The precise scientific difference between EM stations and standard, or AM, stations need not be explored for purposes of this case. The two methods of transmission are physically radically different. They require different transmitters and different receivers. Because of the great difference in the channels designated for use by each, they do not interfere electrically with each other. FM operation is a relatively new development.
It is true that in making the equitable distribution of radio service which the statute requires, the Commission must take cognizance of every feature of existing service in the broadest sense. But we do not have that question. The Commission considered the data as to existing FM stations proffered by appellant, and concluded that the weight which should be given them would not cause a difference in result. The contention in the present case is that, in making a comparison of communities to determine the location of a new AM station, FM stations must be assigned factors of value of the same sort and in the same manner as AM stations. In other words, as we understand the contention, it is that in a comparison for that purpose, a station should count as a station, whether AM or FM.
Standard, or AM, broadcasting has developed gradually over the country over the years. By Commission regulation, c arrier frequencies have been assigned in successive steps of 10 kilocycles in the radio spectrum band between 550 and 1600 kilocycles. Three types of channels have been set up: clear, with stations of power between 10 and 50 kilowatts; regional, with stations of power not in excess of 5 kilowatts ; and local, with stations of 250 watts power. The available frequencies have been assigned to the several classes of channels. Upon these bases, the nationwide system of standard broadcast stations has grown. Viewed as a whole, these stations constitute a pattern of broadcasting, complete but not overlapping.
The Commission approached the problem of FM broadcasting, first proposed in 1935, with a considerable degree of caution. However, it has now formulated a plan for its development. It has assigned for FM use one hundred channels of frequencies between 88.1 megacycles (88,100,000 cycles) to 107.9 megacycles, a wholly different band in the radio spectrum from that used by AM broadcasters. The separation of assigned channels for FM use is 200 kilocycles. The Commission has prepared and published an allocation plan, in which it has made a tentative distribution of these channels to the various cities and communities throughout the United States. The interrelationship of these channels as thus allocated makes a pattern of broadcasting over the country. This proposed distribution of FM channels, and thus of prospective FM stations, has no physical relationship with the AM broadcasting channels or stations. The two are physically independent of each other. Both can exist in the same area at the same time.
Persons with AM receivers cannot, get FM signals, and vice versa. So that new FM stations afford no new service to people with AM receivers; and vice versa. Manufacturers are beginning to make receiving sets with both sorts of receivers, but the eventual outcome of the competition between the two types of broadcasting is currently one of the mysteries.
The question before us in the case at bar is whether, in locating a new AM station, the Commission is required to assign to FM transmitting stations, existing or proposed, in the respective communities, the same values and thus the same consideration as to AM stations.
The Commission says that since the statute itself makes no differentiation between the treatment of AM and FM applications, if the statutory language means that FM stations must be considered in fixing the location of new AM stations, it also means that existing AM stations must be considered in fixing the location of new FM stations. This converse of appellant’s contention poses a serious question in the development of radio communication. If this converse be true, the development of the newer system in areas which have shown progress in establishing the old, would be greatly impeded. The total result would be that instead of achieving over the country an even development of the new, a most irregular development would occur, areas not theretofore served being by compulsion the almost exclusive possessors of the new system. Viewed thus, the question is whether Congress.meant that in planning the nationwide development of a new phase of the constantly progressing radio service, the Commission is bound to the pattern already established by the development of AM broadcasting; in other words, whether, in ■licensing new FM stations, it is required to fill in the interstices in existing service before it can grant the new type of service to those who already have the old. We do not think so.
The Commission says that the new service calls for a new pattern of allocation, or at least a fresh one. Whether it does is not for us to say. Our function is simply to determine whether Congress has directed the contrary. We find no such direction in this statute. We think that “fair, efficient and equitable distribution of radio service” permits a new pattern for a new service which cannot, because of its physical nature, be superimposed upon the old.
Certainly the statute does not require that the Commission give prohibitive weight to the existence of radio stations in allocating television stations. To a less dramatic but equally persuasive extent, the same is true of the location of FM stations.
So much being clear as to the consideration of existing AM stations in the location of new FM stations, we return to appellant’s actual contention, that FM stations must be considered in the location of new AM stations. We think that what is true of the converse is true of the proposition in this instance.
We do not think that an extension of the older service need necessarily contemplate the pattern of development of the new. Again we point out that the difference between AM and FM is not a mere classification by the Commission. It is a fundamental physical difference. Different principles may govern the proper location of the stations. This statute does not, it seems to us, forbid the older service to he extended where the new has been installed, and does not require that the existence of the newer type of service be a controlling factor in the extension of the old. FM service is, of course, a radio service, and so, in a comparative evaluation of two communities for radio purposes, if it exists in one or the other, its presence must be noted. And in some cases the general over-all situation might, in the last analysis, after all the facts are viewed, be the controlling feature in the determination. But the Commission is not required to ignore the basic difference between the two services. If the comparison is for the purpose of locating an AM station, and if one community has an FM station, the Commission is not required to consider that community as though it had an AM station. If one community has two FM stations and the other an AM and an FM, the Commission is not required to limit its consideration to an undefined conclusion that both communities have two stations. In this latter instance, it could properly find that while both towns have FM service, one has AM and the other has not; and the facts as to the AM service might well control the placement of a new AM station. So, in the case at bar, after the Commission had viewed the existing FM service to ascertain whether there was any determinative factor in that feature of the situation, and had found that there was' none, it could properly proceed with its conclusion as to new AM service upon a consideration of the existing AM service. The position of appellant upon this point, ably and vigorously pressed upon us by its counsel, is, in substance, that the Commission must view existing AM and FM stations as though they were alike, and so must give them the same weight, in any comparison of communities for a new station of either type. We do not think that view of the statutory requirement correct.
Furthermore, it appears that in the Commission’s revised tentative allocation plan for Class B FM stations, the four channels assigned to the area involved in the case at bar are assigned to Allentown-BethlehemEaston as one area, and not separately to the respective cities. They are owned by the existing AM station owners, including the Easton AM station. All the existing FM stations provide service to the whole area. What the location of the transmitters and studios of these stations ought to be, ■is not in this case. That is a question of the proper location of FM facilities. But it seems clear that service allocated to and being received by an entire area cannot be wholly assigned to one spot or another for the purpose of evaluating the services available to each separate community in the area.
The case must be remanded for findings upon the comparative needs of the two communities for new radio service and the relative abilities of the applicants to serve the greater need. Upon the other points at issue, the conclusions of the Commission are affirmed.
Remanded for further proceedings.
Sec. 402(b) (1) of the Communications Act of 1934, 48 Stat. 1093, 47 U.S.C.A. § 402(b) (1).
Three were for new construction, and one was for a change in the frequency of an existing station.
See. 307(b) of the Communications Act of 1934, 48 Stat. 1083, as amended, 49 Stat. 1475 (1936), 47 U.S.C.A. § 307 (b).
1940, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869.
1938, 68 App.D.C. 282, 96 F.2d 554, certiorari denied, 1938, 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391.
1938, 68 App.D.C. 292, 96 F.2d 564.
See. 307(b) of the Communications Act of 1934, supra note 3, which was originally an amendment of March 28, 1928, 45 Stat. 373, to the Radio Act of 1927, 44 Stat. 1162.
In order to achieve the variation in electric waves necessary to reproduce sound tones, AM (amplitude modulation) transmitters vary the maximum value (intensity) of the waves; FM (frequency modulation) transmitters vary the frequency. FBI transmission is practical in a very high frequency band and is relatively free of sky wave. Under the present designation, by the Commission, of channels to be used, FM is less subject to interference than is AM. Higher quality of sound reproduction is achieved by FM, sineo the width of the channel remains unchanged in this method of modulation and the carrier wave can thus bo modulated to all audible frequencies.
The facts recited in the following part of this opinion may be found in the Commission’s Rules and Standards of Good Engineering Practice and in the standard authorities on radio broadcasting; e, g., Pike & Fischer Radio Regulation; Warner Radio & Television Law.
12 Fed.Reg. 4031 (1947).
12 Fed.Reg. 4036 (1947).
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
|
songer_genresp2
|
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.
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.
J. A. RICHARDS, d. b. a. J. A. Richards Co. v. DUMORE COMPANY.
No. 5760.
Circuit Court of Appeals, Sixth Circuit.
June 9, 1931.
Chappell & Earl, of Kalamazoo, Mich., for appellant.
Knappen, Uhl, Bryant & Snow, of Grand Rapids, Mich., and George Bayard Jones, of Chicago, Ill. (M. F. Cargill, of Chicago, Ill., of counsel), for appellee.
PER CURIAM.
Decree of District Court [52 F.(2d) 311] affirmed by court order.
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_civproc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
UNITED STATES ex rel. BROWN v. HILL, Warden.
No. 5592.
Circuit Court of Appeals, Third Circuit.
Dec. 6, 1934.
Robert Brown, pro se.
Frank J. McDonnell, U. S. At'ty., of Scranton, Pa., and Plerman F. Reich, Asst. U. S. Atty., of Sunbury, Pa., for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
PER CURIAM.
Robert Brown was indicted, tried, and convicted in the district of New Jersey for passing and possessing counterfeit bills. On December 8, 1932, the court imposed a sentence that he “be committed for the term of five years in a Federal Penitentiary * * *, term to commence October 15, 1932.” He was promptly committed and thereupon began serving his sentence.
It is clear from the words of the sentence that the term of imprisonment was five years. It is equally clear that, in fixing the date for commencement of the term prior to the date of sentence, the learned trial judge intended to give the prisoner the benefit of the time he had been imprisoned before conviction. Later, when at the next term of court, namely, on February 14, 1933, his attention was called to the then recent Act of June 29, 1932 (18 U. S. C. § 709a [18 USCA § 709a]), which provides specifically and exclusively that a “sentence of imprisonment of any person convicted of a crime in a court of the United States shall commence to run from the date on which such person is received at the penitentiary * * * for service of said sentence,” the judge amended the five-year sentence to one of four years three hundred and ten days, to run, presumably, from the date of the amendment. This new term of imprisonment was in effect a five-year term from the date of commitment (as provided by the statute) less the period of imprisonment after the date of commitment, the benefit of which the learned court tried to give the prisoner.
The prisoner, conceiving that the first sentence was wholly invalid because it stated a date for the commencement of the term otherwise than as provided by the Act of June 29, 1932, and contending that the amendment of the sentence was in legal effect a new sentence imposed after the term at which he was first sentenced, and imposed in his absence, and therefore invalid, filed a petition for a writ of habeas corpus which the learned judge, in the Middle district of Pennsylvania, to whom it was addressed, dismissed. The appeal is from the order of dismissal.
We are constrained to hold that the commitment under the sentence of December 8, 1932, was valid, and therefore the relator is in lawful custody. The court had jurisdiction of the case and of the prisoner and jurisdiction to impose the five-year term of imprisonment which was within the punishment prescribed by the statute under -which the prisoner was tried, convicted, and committed. It follows the sentence of imprisonment for five years was lawful. The court’s direction that it should begin on October 15, 1932, did not make inoperative the provision of the statute which says it should begin when the prisoner is received in the pentitentiary. In other words, the court fixed the term; the law named the time of its commencement. We are therefore of opinion that the effort of the trial court (inadvertently made in behalf of the prisoner) to fix the commencement of the term at a date earlier than that provided by the statute was error and in consequence invalid; yet it affected the validity of the sentence only to that extent, leaving the rest of the sentence as though the court had said nothing about the commencement of the term. This vulnerable part of the sentence in no way vitiated the remainder of the sentence; hence it did not operate as a restraint of the relator’s liberty. He is restrained of his liberty by force of the valid five-year sentence. The invalid limitation upon the sentence made by the early date for its commencement was nothing more than an attempt to shorten the duration of the valid restraint of his liberty under the five-year sentence.
We reach this conclusion on a finding that the case falls within recent pronouncements which the Supreme Court has made in respect to writs of habeas corpus. McNally v. Hill, 291 U. S. 131, 55 S. Ct. 24, 26, 79 L. Ed. —-. It said: “Under the statute in its present form [chapter 14, Title 28 U. S. C. (28 USCA § 451 et seq.)] the writ may issue ‘for the purpose of an inquiry into the cause of restraint of liberty’ * * * [“unless,” venturing to interpolate, for present purposes, the words of section 455, Title 28 U. S. C. (28 USCA § 455) “it appears from the petition itself the party is not entitled thereto”]. Considerations which have led this court to hold that habeas corpus may not be used as a writ of error to correct an erroneous judgment of conviction of crime, but may be resorted to only where the judgment is void because the court was without jurisdiction to render it, * * * lead to the like conclusion where the prisoner is lawfully detained under a sentence which is invalid in part.”
In the absence of an opinion by the learned trial judge in dismissing the petition for a writ of habeas corpus, we find he probably held, as we do, that the sentence of imprisonment for five years, imposed upon the relator on December 8, 1932, was valid, in that it was within the law and therefore within the jurisdiction of the court, and that the service of the five-year seiitence commenced not on the earlier date inadvertently mentioned in the sentence nor on the later date of the nugatory amendment, but on the date of the commitment as fixed by statute.
Therefore, it appearing “from the petition itself” that the relator is not entitled to a writ of habeas corpus, the order of the District Court dismissing his petition is affirmed.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
SHIGERU FUJII v. UNITED STATES.
No. 2973.
Circuit Court of Appeals, Tenth Circuit.
March 12, 1945.
Writ of Certiorari Denied May 28, 1945.
See 65 S.Ct. 1406.
Samuel D. Menin, of Denver, Colo. (Clyde M. Watts, of Cheyenne, Wyo., on the brief), for appellant.
■Carl L. Sackett, U. S. Atty., of Cheyenne, Wyo. (John C. Pickett, Asst. U. S. Atty., of Cheyenne, Wyo., on the brief), for appellee.
Before BRATTON, HUXMAN, and MURRAII, Circuit Judges.
HUXMAN, Circuit Judge.
Shigeru Fujii, the appellant herein, was indicted, tried, and convicted tinder 50 U.S. C.A. Appendix § 311, for wilfully refusing and failing to report for induction into the armed forces of the United States pursuant to an order of his local draft board. He is one of 63 persons convicted under similar circumstances. By stipulation of counsel, it is agreed that the other cases shall be controlled by the decision in this case.
Appellant is an American citizen. He was born in the United States of Japanese ancestry. He registered with his local draft board in California. Thereafter, in 1942, he was removed to and confined in a relocation center at Heart Mountain Park, Wyoming. At first he was classified in IV-C. Prior to the order to report, he was reclassified into 1-A. He was still confined in the relocation center when he was ordered to report for induction.
Appellant was loyal to the United States at all times. There can be no question about this. The agent for the Federal Bureau of Investigation who investigated him after he failed to report testified that his attitude was that of being loyal to the United States; that he indicated no desire to live in Japan, and that he desired to fight for this country if he were restored to his rights as a citizen.
Appellant’s entire appeal is predicated on the argument that his removal from his home and his confinement behind barbed wire in the relocation center without being charged' with any crime deprived him of his liberty and property without due process of law, and that therefore he ought not to be required to render military service until his rights were restored.
Under the admitted facts as to his loyalty, he was restrained of his liberty by confinement in the relocation center. ile could have secured his complete release from restraint by writ of habeas corpus at any time and could thus have been restored to freedom. This would have given him the vindication which he seeks. It would have cleared his name for all time. But this he did not do. Instead, he chose to disobey a lawful order because he claimed his rights had been invaded. Two wrongs never make a right. One may not refuse to heed a lawful call of his government merely because in another way it may have injured him. Appellant was a citizen of the United States. Tie owed the same military service to his country that any other citizen did. Neither the fact that he was of Japanese ancestry nor the fact that his constitutional rights may have been invaded by sending him to a relocation center cancel this debt.
Furthermore, the courts are not open to him to challenge his right to exemption from military service under the admitted facts. , It is now well settled that one must exhaust his administrative remedies and must obey the order to report before he may use the courts to challenge his classification. This was definitely settled by the Supreme Court in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. Appellant concedes this, but argues that the decision in the Falbo case is wrong. In effect, he asks us to overrule the Supreme Court. No reason, to say nothing of. a cogent one, is given for this extraordinary request. Appellant also urges that this case is controlled by the decision in United States v. Kuwabara, D.C., 56 F.Supp. 716. We do not pass upon the soundness of that decision. It is sufficient to say that it is distinguishable upon the facts.
The Selective Service Act makes it a penal offense to refuse to report for induction. It was appellant’s duty to report for induction and thereafter assert any claimed rights for exemption from military service by writ of habeas corpus. This he failed to do. Instead, he chose to ignore the order. As a result, he became subject to the penal provisions of the statute.
Under the stipulation of the parties, this -decision is made applicable to the other -.sixty-two cases covered therein.
Affirmed.
Ex parte Mitsuye Endo, 1944, 323 U. S. 283, 65 S.Ct. 208.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_respond1_3_3
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
AMERICAN PAPER INSTITUTE, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, National Association of Recycling Industries, Inc., Intervenor.
No. 79-1583.
United States Court of Appeals, District of Columbia Circuit.
Sept. 7, 1979.
Edward L. Merrigan, Washington, D. C., was on the motion to dismiss, for intervenor.
John F. Donelan and John K. Maser, III, Washington, D. C., were on the opposition to the motion to dismiss, for petitioner.
Robert S. Burk, Kenneth G. Caplan and David Popowski, Attys., I. C. C., Washington, D. C., for respondent I. C. C.
John J. Powers, III and Robert Lewis Thompson, Attys., Dept, of Justice, Washington, D. C., for respondent United States of America.
Before MacKINNON , ROBB and WILKEY, Circuit Judges.
Circuit Judge MacKinnon did not participate in the foregoing decision.
Opinion for the court PER CURIAM.
PER CURIAM:
American Paper Institute, Inc. (API) filed a petition for review of an ICC order. The petition conformed to the notice requirements of Rule 15(a) of the Federal Rules of Appellate Procedure, being modeled after Form 3 of the Appendix of forms. Intervenor National Association of Recycling Industries, Inc. (NARI) has moved to dismiss or strike the petition because the petition does not conform to the more specific requirements of the Hobbs Act, 28 U.S.C. § 2344 (1976). Because Rule 15(a) supersedes section 2344 with respect to forms of petitions, the motion is denied.
Section 2344 provides that a petition for review from an ICC proceeding “shall contain a concise statement of — (1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed.” Intervenor NARI contends that because API’s petition for review does not contain the statements required by section 2344, the petition must be dismissed or striken.
Petitioner API argues that the strict pleading requirements of section 2344 have been superseded by Rule 15(a) of the Federal Rules of Appellate Procedure, which requires only that a petition for review “specify the parties seeking review,” and “designate the respondent and the order or part thereof to be reviewed.” We agree.
The Federal Rules of Appellate procedure were promulgated by the Supreme Court of the United States pursuant to 28 U.S.C. § 2072, which provides, in part:
The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure of the district courts and courts of appeals of the United States in civil actions, including . . . the practice and procedure in proceedings . . . for the judicial review or enforcement of orders of administrative agencies, boards, commissions, and officers.
All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. Nothing in this title, anything therein to the contrary notwithstanding, shall in any way limit, supersede, or repeal any such rules heretofore prescribed by the Supreme Court.
Thus, conflicting statutes are superseded by the Federal Rules of Appellate Procedure.
That Rule 15(a) was meant to supersede section 2344 is made clear in the Advisory Committee’s comments about the Rule:
The proposed rule supersedes 28 U.S.C. § 2344 and other statutory provisions prescribing the form of the petition for review and permits review to be initiated by the filing of a simple petition similar in form to the notice of appeal used in appeals from judgments of district courts. The more elaborate form of petition for review now required is rarely useful either to the litigants or to the courts. There is no effective, reasonable way of obliging petitioners to come to the real issues before those issues are formulated in the briefs. . . .
In view of the clear intent of the Advisory Committee that Rule 15(a) supersede section 2344, and because the specificity requirements of section 2344 conflict with the notice-only requirement of Rule 15(a), the Rule requirements supersede those of the statute.
There are, however, two reported opinions of this court that may obliquely contravene this proposition. In Microwave Communications, Inc. v. FCC (MIC) this court held that the time for filing a petition for review does not expire earlier than sixty days from the issuance of the full text of the disputed order. One of the reasons for so holding was that the court could not “envision how preparation of a petition for review conforming to [28 U.S.C. § 2344 and 47 U.S.C. § 402(a)] requirements [of argumentative particularity] could responsibly be undertaken simply on the basis of . a [news release].”
In Industrial Union Department v. Bingham a petition for review was filed after an OSHA standard was disclosed to a representative group of interested organizations, but before it was announced and the text was released to the public at a press conference. The court held that the petition was not premature. The court noted that MCI “held that the period for seeking review of an FCC order began only when its full text was made available.” The court reasoned that MCI was factually distinguishable and moreover the requirement of a statement of reasons in a petition/notice, as required by 28 U.S.C. § 2344 and 47 U.S.C. § 402(c), distinguished, for purposes of determining whether a petition/notice has been filed prematurely, appeals of FCC orders from appeals of orders of other agencies in which the governing statutes do not require a statement of reasons.
Both these cases appear to assume that the section 2344 requirements of petition format are applicable in the relevant agency review proceedings. However, because it does not appear that the court considered the effect of Rule 15(a) in reaching these results, and because a conclusion that section 2344 specificity requirements are still valid was not essential to the outcome in either case, the opinions are not inconsistent with today’s holding that Rule 15(a) notice requirements supersede the argumentative particularity mandate in section 2344.
CONCLUSION
Because the Advisory Committee’s notes and the conflicting nature of the requirements of Rule 15(a) and section 2344 make clear that the rule supersedes the statute, and in the absence of contrary binding precedent, the motion to dismiss or strike the petition is denied.
. While NARI is a petitioner in No. 79-1393, it is an intervenor in No. 79-1583. The two cases, along with several others, were consolidated for review by order dated 14 June 1979.
. The Order of the Court promulgating the Appellate Rules is reported at 389 U.S. 1063 (1968).
. 28 U.S.C. § 2072 (1976) (emphasis added).
. Notes of Advisory Committee on Appellate Rules, reprinted following 28 U.S.C. App. Fed.R.App. P. 15 (1976).
. 169 U.S.App.D.C. 154, 515 F.2d 385 (D.C. Cir. 1974).
. 169 U.S.App.D.C. at 160, 515 F.2d at 391.
. 187 U.S.App.D.C. 56, 570 F.2d 965 (D.C. Cir. 1977).
. Id. at 969 n.6.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
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.
ARROWSMITH et al., EXECUTORS, et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 51.
Argued October 24, 1952.
Decided November 10, 1952.
George R. Sherriff argued the cause for petitioners. With him on the brief was Joseph C. Woodle.
Helen Goodner argued the cause for respondent. With her on the brief were Acting Solicitor General Stern, Assistant Attorney General Lyon, Philip Elman, Ellis N. Slack and Harry Baum.
Briefs of amici curiae supporting petitioners were filed by Norman D. Keller for Edgar J. Kaufmann; and by John W. Burke.
Mr. Justice Black
delivered the opinion of the Court.
This is an income tax controversy growing out of the following facts as shown by findings of the Tax Court. In 1937 two taxpayers, petitioners here, decided to liquidate and divide the proceeds of a corporation in which they had equal stock ownership. Partial distributions made in 1937, 1938, and 1939 were followed by a final one in 1940. Petitioners reported the profits obtained from this transaction, classifying them as capital gains. They thereby' paid less income tax than would have been required had the income been attributed to ordinary business transactions for profit. About the propriety of these 1937-1940 returns, there is no dispute. But in 1944 a judgment was rendered against the old corporation and against Erederick R. Bauer, individually. The two taxpayers were required to and did pay the judgment for the corporation, of whose assets they were transferees. See Phillips-Jones Corp. v. Parmley, 302 U. S. 233, 235-236. Cf. I. R. C., § 311 (a). Classifying the loss as an ordinary business one, each took a tax deduction for 100% of the amount paid. Treatment of the loss as a capital one would have allowed deduction of a much smaller amount. See I. R. C., § 117 (b), (d) (2) and (e). The Commissioner viewed the 1944 payment as part of the original liquidation transaction requiring classification as a capital loss, just as the taxpayers had treated the original dividends as capital gains. Disagreeing with the Commissioner the Tax Court classified the 1944 payment as an ordinary business loss. 15 T. C. 876. Disagreeing with the Tax Court the Court of Appeals reversed, treating the loss as “capital.” 193 F. 2d 734. This latter holding conflicts with the Third Circuit’s holding in Commissioner v. Switlik, 184 F. 2d 299. Because of this conflict, we granted certiorari. 343 U. S. 976.
I. R. C., § 23 (g) treats losses from sales or exchanges of capital assets as “capital losses” and I. R. C., § 115 (c) requires that liquidation distributions be treated as exchanges. The losses here fall squarely within the definition of “capital losses” contained in these sections. Taxpayers were required to pay the judgment because of liability imposed on them as transferees of liquidation distribution assets. And it is plain that their liability as transferees was not based on any ordinary business transaction of theirs apart from the liquidation proceedings. It is not even denied that had this judgment been paid after liquidation, but during the year 1940, the losses would have been properly treated as capital ones. For payment during 1940 would simply have reduced the amount of capital gains taxpayers received during that year.
It is contended, however, that this payment which would have been a capital transaction in 1940 was transformed into an ordinary business transaction in 1944 because of the well-established principle that each taxable year is a separate unit for tax accounting purposes. United States v. Lewis, 340 U. S. 590; North American Oil v. Burnet, 286 U. S. 417. But this principle is not breached by considering all the 1937-1944 liquidation transaction events in order properly to classify the nature of the 1944 loss for tax purposes. Such an examination is not an attempt to reopen and readjust the 1937 to 1940 tax returns, an action that would be inconsistent with the annual tax accounting principle.
The petitioner Bauer’s executor presents an argument for reversal which applies to Bauer alone. He was liable not only by reason of being a transferee of the corporate assets. He was also held liable jointly with the original corporation, on findings that he had secretly profited because of a breach of his fiduciary relationship to the judgment creditor. Trounstine v. Bauer, Pogue & Co., 44 F. Supp. 767, 773; 144 F. 2d 379, 382. The judgment was against both Bauer and the corporation. For this reason it is contended that the nature of Bauer’s tax deduction should be considered on the basis of his liability as an individual who sustained a loss in an ordinary business transaction for profit. We agree with the Court of Appeals that this contention should not be sustained. While there was a liability against him in both capacities, the individual judgment against him was for the whole amount. His payment of only half the judgment indicates that both he and the other transferee were paying in their capacities as such. We see no reason for giving Bauer a preferred tax position.
Affirmed.
At dissolution the corporate stock was owned by Frederick P. Bauer and the executor of Davenport Pogue’s estate. The parties here now are Pogue’s widow, Bauer’s widow, and the executor of Bauer’s estate.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_state
|
06
|
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".
Ruben Alfred URIBE, Plaintiff-Appellant, v. Louis S. NELSON, Warden, Defendant-Appellee.
No. 72-2412.
United States Court of Appeals, Ninth Circuit.
Nov. 24, 1972.
Ruben Alfred Uribe, in pro. per.
Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr„ Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Robert R. Granucci, Thomas A. Brady, Deputy Attys. Gen., San Francisco, Cal., for defendant-appellee.
Before MERRILL, CARTER and WRIGHT, Circuit Judges.
PER CURIAM:
Uribe, a state prisoner, appeals the decision of the District Court denying a petition for writ of habeas corpus, 28 U.S.C. § 2241 (1970).
Uribe claims that his conviction should be reversed under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because he received inadequate warnings during his initial interrogation. However, he was not prejudiced in any way by these inadequate warnings since he gave no confession, made no damaging statements, and, in fact, pleaded guilty at trial. In these circumstances, there is nothing to which the Miranda rule can apply.
Uribe also claims that his attorney and the prosecution made a plea bargain which was not kept. The District Court held an evidentiary hearing on this issue. See Macon v. Craven, 457 F.2d 342 (9th Cir. 1972). The record supports the decision of the lower court that no bargain had been struck.
Finally, Uribe alleges that he pleaded guilty to and was convicted of a crime other than the one with which he was charged. Upon this claim he has failed to exhaust his available state remedies.
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:
|
songer_two_issues
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
NATIONAL LABOR RELATIONS BOARD v. MT. CLEMENS POTTERY CO.
No. 9710.
Circuit Court of Appeals, Sixth Circuit
Feb. 13, 1945.
Joseph B. Robison, of Washington, D. C. (Alvin J. Rockwell, Malcolm F. Halliday, and David Kindling, all of Washington, D. C., and Herman Lazarus, of Philadelphia, Pa., on the brief), for petitioner.
Bert V. Nunneley, of Mt. Clemens, Mich., and Percy J. Donovan, of Detroit, Mich., for respondent and intervenor.
Beaumont, Smith & Harris, Albert E. Meder, and Percy J. Donovan, all of Detroit, Mich., and Bert V. Nunneley, of Mt. Clemens, Mich., on the brief, for respondent.
Kenneth J. Logan and Maxton R. Valois, both of River Rouge, Mich., on the brief, for intervenor.
Before SIMONS, HAMILTON, and Mc-ALLISTER, Circuit Judges.
SIMONS, Circuit Judge.
The respondent is engaged in the manufacture of dinnerware at Mt. Clemens, Michigan, with approximately 750 employees. In August, 1940, the United Pottery Workers, a labor organization affiliated with the C.I.O., initiated a campaign to organize its employees and obtained some members. An affiliate of the A.F. of L. likewise undertook to organize the plant, but met with little response and is not in the present controversy. On October 3 and 4, Doll, president of respondent, held meetings of all of its employees and read to them a prepared statement to the effect that they would be better off if they did not join the union, without specifying which union was meant. About this time Harms, a foreman, inquired of some of the work'ers whether Lillian Socia, a C.I.O. member, had been talking for the Union in the plant, and late in January, told Burgess, an employee who had attended a C. I.O. meeting, that the employees had always got along without an outside organization. In February, 1941, Doll posted a notice stating that wages and other questions of employment were matters to be adjusted strictly between employer and employee, that any statement that a worker would have to join a union to hold his job, was false, and requesting employees to report instances of coercion or intimidation, although there is no proof that such threats had been made.
In April, 1941, when the first strike occurred, Copeland, another foreman, was asked by an employee what the respondent would do with the hand dippers who were being replaced by new machines, and replied, “If they don’t stop bringing in the union we will have a lot more machines in.” Two foremen called upon the employee Dupont and intimated to him that there were good promotional jobs open, and foreman Randolph asked a picket why he didn’t take his problems to Doll instead of airing them with “those fellows in Detroit.” Likewise during the strike the respondent sent letters to its employees stating “it would be futile to resume operations except under conditions that will make impossible a repetition of Monday’s walkout or any other suspension of operations.” A ballot was enclosed on which the workers were asked to indicate whether they approved of the strike or whether, they wanted to return to work, but the ballots were never opened. Upon the basis of these circumstances, established by evidence credited by the Board, the Board found that the respondent had “interfered with, restrained, and coerced” its employees in violation of § 8(1) of the National Labor Relations Act, 29 U.S.C.A. ■§ 158(1) and issued a cease and desist order with affirmative directives for which it now seeks enforcement.
We are not presented with any issue in respect to the right of the employer to freely express his views on unionization •of his employees, as in National Labor Relations Board v. Ford Motor Co., 6 Cir., 114 F.2d 905, 914, and Midland Steel Products Co. v. National Labor Relations Board, 6 Cir., 113 F.2d 800, and have no occasion to apply the doctrine of Thornhill v. State of Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093, or American Federation of Labor v. Swing, 312 U.S. 321, 325, 61 S.Ct. 568, 85 L.Ed. 855, for the reason that the Board made no finding that Doll’s expression of his views on unionization was an unfair labor practice on the part of the respondent, nor is he restrained from expressing his opinions by the terms of the cease and desist order. Such views, however, become important in determining whether employees have reasonable ground to believe that supervisors, in discouraging unionization or interfering in any way with their free choice of a bargaining agency, represent the views of management. The test is not objective, but subjective, from the standpoint of employees. National Labor Relations Board v. Thompson Products, 6 Cir., 130 Fed.2d 363, 368.
While some of the incidents might to us seem unimportant and as having little coercive effect upon the free choice of the employees, there was room for an inference that the respondent had unlawfully interfered with their organizational activities. Certainly the statement: of Copeland that if unionization persisted more hand dippers would be replaced by machines, was coercive. It could reasonably be inferred that the proposal to put Dupont into a better job was to discourage; his activity in the union, and that there-was implicit a threat to suspend operations in Doll’s letter to the workers during the strike. Such inferences are for the Board and not for the court, as we have recently observed in National Labor Relations Board v. American Creosoting Co., Inc., 139 F.2d 193, where controlling authority is fully cited. We are compelled to sustain the findings of the Board that the respondent had interfered with, restrained, and coerced its employees in violation of § 8 (1), and to sustain its order requiring it to cease and desist from such practices.
The Board also found that the respondent was instrumental in the formation of' the Pottery Workers Co-operative, an unaffiliated labor organization of its employees with which it had bargained and now has a contract. The order requires it to cease dominating or interfering with the Co-operative, recognizing it as the representative of its employees, or giving effect to its contract, and directs that - it withdraw recognition from and disestablish the Co-operative as such representative. The Board found that late in February or early in March, 1941, while organization efforts were being pursued by the United, . a suggestion for an inside union was made to some of the respondent’s employees by its foreman Parrott, and that thereafter, on April 11, two employees in the clay department, undertook to circulate petitions to that end among the employees for the purpose of forming a shop union to bargain collectively with management. They took time off for that purpose. Within half an hour thereafter their activities came to the attention of Doll who then had them collect all of the petitions and destroy them in his presence. Meanwhile, an entirely separate organization was started which became the Cooperative. There is no evidence that those who started it were in any way under company control. Some assistance was, however, given to it by the son of the plant superintendent, and Crothers, a foreman, attended an organizational meeting, though he took no part. The next day, however, Crothers gave orders that no more cards were to be passed out in the plant because Doll had said it was against the law. However, on April 14, the day the first strike started, an employee, Sopha, at the home of his foreman Fitton, was given a Co-operative application by Fitton’s sister-in-law. Organization proceeded rapidly during the strike, and on April 18, Reese, the Co-operative’s attorney, wrote to Doll claiming a majority, requesting a meeting of all parties, and a consent election. Doll had previously refused to meet the C.I.O. representatives, but he now met with representatives of both Unions at the office of a state labor conciliator. During the meeting the C.I. O. director claimed a majority of respondent’s employees, but made no offer of proof and refused to consent to any election to which the Co-operative was a party. The Co-operative’s lawyer then demanded a check of the Co-operative’s membership cards by an impartial umpire. That check was made on May 1 and 2, with a report that the Co-operative had 58% of the employees. The respondent thereupon opened bargaining negotiations with the Co-operative on May 5, and on May 7 a contract was signed. On November 24 the C.I.O. called another strike, but the plant remained open. The night before the strike some 25 or 35 employees, members of the Co-operative, stayed all night in the plant with foremen and officials, and in the morning tried to break the picket line which blocked the entrances, and a fight resulted. During the strike Starner, a foreman, told a striker that he had helped him get his job and that in striking he had put Starner in bad with Doll, and praised the Co-operative.
From these circumstances the Board concluded that the respondent dominated and interfered with the formation and administration of the shop union in violation of § 8(2) of the Act. Were it possible for us to put into a separate compartment the circumstances relied upon to establish promotion and domination of the Co-operative by the respondent, and to insulate them from the unfair labor practices heretofore discussed, it would be difficult to perceive that such circumstances, even though credited by the Board, rise to the dignity of substantial evidence disclosing domination. While Parrott, a foreman, had told an employee, Willey, that the C. I.O. was getting pretty strong and had asked him if he was doing anything to protect his job, no threat was involved, and Willey joined the C.I.O. without being discriminated against. While Odor and Woodarski, who first circulated petitions for a shop union, were not disciplined by the respondent, as a C.I.O. member previously had been, and this was found to be evidence of partiality, yet the C.I.O. member had been carrying on his activities in the plant upon company time, while the others had been active on their own time. There is no contention that those who' started the movement which resulted in the formation of the Co-operative, were in any way under company control, and there was no finding that the activity of Pat Rouleau, son of the plant superintendent, could be imputed to the superintendent himself, or was considered by any employee to represent the superintendent’s views. Nor does the fact that the respondent promptly bargained and concluded a contract with the Co-operative, constitute evidence that it promoted and dominated the Co-operative. Being advised by the-result of an impartial check that the shop union had enlisted 58% of its employees, the respondent acted in compliance with, rather than in evasion of, law, when it bargained and entered upon a contract with the Co-operative.
But the charge of domination cannot he insulated from unfair labor practices held to have interfered with the organizational activities of employees, either concurrently, prior to, or subsequent to organizational efforts. It was said in International Association of Machinists et al. v. National Labor Relations Board, 311 U.S. 72, 82, 61 S.Ct. 83, 89, 85 L.Ed. 50, “It is for the Board not the courts to determine how the effect of prior unfair labor practices may be expunged” — an observation made in reliance upon National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S. Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; National Labor Relations Board v. Falk Corporation, 308 U.S. 453, 461, 60 S.Ct. 307, 84 L.Ed. 396, and subsequently quoted and approved in Franks Bros. Co. v. National Labor Relations Board, 321 U.S. 702, 704, 64 S.Ct. 817. It is no doubt true that.a company union may equally be promoted albeit, more subtly, by opposition to a competitive union than by direct promotion. As we observed in National Labor Relations Board v. Clinton Woolen Mfg. Co., 141 F.2d 753, 758, “Interference, coercion, and domination are active processes. They may, of course, be inferred from a course of conduct even though no overt acts are proved, and inferences are for the Board to draw and not for us. The Board must be, as always it has been, upon its guard against subtle evasions by which attitudes, fair on their face, realistically viewed, amount to interference and coercion.”
Having concluded that the Board was within its competence in finding interference with the free choice of the respondent’s employees because of intimations, promises and thinly veiled threats of supervisory employees against a background of employer hostility to unions, we may not say that the Board was without legal power to infer that the Co-operative majority in the respondent’s plant was not an un-coerced majority. The rationalization in International Association of Machinists v. National Labor Relations Board, supra, applies to the present case — “To be sure, it does not appear that the employer instigated the introduction of petitioner into the plant. Biit the Board was wholly justified in finding that the employer ‘assisted’ it in its organizational drive.. Silent approval of or acquiescence in that drive for membership and close surveillance of the competitor; the intimations of the employer’s choice made by superiors; * * * the employer’s known prejudice against the •U.A.W., were all proper elements for it to take into consideration in weighing -the evidence and drawing its inferences. To say that the Board must disregard what preceded and what followed the membership drive would be to require it to shut its eyes to potent imponderables permeating this entire record. The detection and appraisal of such imponderables are indeed one of the essential functions of an expert administrative agency.” There are undoubtedly distinguishing features to be noted between the facts of the cited and the present case. The differences are, however, mainly those of degree and not of kind. We are compelled to conclude that the Board was warranted in finding that the respondent assisted in the formation of the Co-operative, and so its directives for the disestablishment and nonrecognition of the Co-operative as bargaining agency, must be sustained.
There must, however, be some modification of the Board’s order in respect to the reinstatement of some of the respondent’s employees, and in the requirement that they be compensated for their loss of pay by reason of alleged discriminatory discharges. The discharges of Lehl and Suer, dippers, were clearly, upon the record, the result of lack of work and the vote of the men in the department to eliminate the practice of alternating between the dipping and the glaze rooms, and were made in pursuance of the company policy not to demote employees displaced by lack of work. The evidence in respect to their discharge appears to- be undisputed. A statement by foreman Harms, made subsequent to the discharge, that Suer and Lehl “got the works,” cannot be considered substantial evidence of discrimination since the discharges were ordered from above in strict accordance with seniority. They should not be reinstated.
Felong and Baxter were lowest in seniority among the dippers, and when reduction in work after the April strike necessitated further curtailment of employment, both asked for and were given other jobs but found them too heavy. No lighter jobs being available, except such as would have meant definite demotion, they were let out. There was no substantial evidence that their discharge was the result of discrimination for union activity, especially in view of the fact that Wendt’s discharge under similar circumstances was held justified, and Anderson, president of the local, was retained. They are not entitled to reinstatement.
The alleged discrimination against Pearl, Dacko, Behnke, Holmes, and Mokanyk, requires special mention. The trial examiner found that by discharging these men on November 27, 1941, the respondent discriminated against them because they had engaged in concerted activity protected by the Act. The Board, however, overruled the Examiner and found that by refusing to work overtime, and leaving their jobs before the close of the working day, all five employees had clearly indicated their unwillingness to continue working under the terms prescribed by the respondent; that when they returned to work the following morning the respondent had reason to believe that they would again engage in like activity whenever they should be required to follow similar work orders. It held that the respondent, under the circumstances, was not prohibited by the Act from refusing to permit them to return until they had indicated a disposition to accept the respondent’s terms and conditions of employment; that the respondent did not discriminate against them, — they were legally discharged. The Board found, however, that Pearl and Dacko were discharged for the added reason that they had, without permission, pulled switches in an effort to stop production, and they were denied reinstatement. It held, however, that since the work of Behnke, Holmes, and Mokanyk ceased in consequence of and in connection with a labor dispute concerning the terms of their employment, they remained employees within the meaning of § 2(3) of the Act, 29 U.S.C.A. § 152(3), and the respondent could not terminate their employment because they had engaged in such activity.
It is clear that Behnke, Holmes, and Mokanyk did not regard themselves as on strike until the strike began on the 24th, for all of them returned to the plant on the 22nd and were paid off. It is not explained how these men could be legally discharged and yet remain employees. If, as the Board concluded, they were discharged in pursuance of a labor dispute such as is contemplated by the Act, that dispute began when the men walked out, and the respondent’s refusal to permit them to work the next day, was illegal. The Board, however, found the contrary, and that the men joined the strike only on the 24th. The Board’s conclusions are not supported by its findings, and the order for reinstatement of Behnke, Holmes, and Mokanyk, will be set aside.
The Board found that the November strike was, in substantial measure, caused by the respondent’s unfair labor practices, and has ordered all strikers, except those specifically excluded, to be reinstated with back pay. Among the causes for the strike was the discharge of the five employees, including the two who pulled the switches and left their jobs on November 21. While this alleged unfair labor practice now disappears as a legitimate grievance because of the finding of the Board that all five men were lawfully discharged, yet the underlying causes of the strike were found by the Board to reside in an unlawful course of conduct, including discrimination against other employees, interference with the formation of the Co-operative, and attempts to dissipate the strength of the C.I.O. We are not, therefore, permitted under the reasoning of International Association of Machinists v. National Labor Relations Board, supra, to reject the Board’s inference that such continued practice was a substantial and motivating factor in causing or prolonging the strike, even though it was precipitated by discharges which the Board now finds to have been justified. The contention that the earlier cases of discrimination were settled by an award made by Captain Leonard of the State Police, who, as an arbitrator, compromised the grievances that led to the April strike, must be rejected. The Leonard award was purely a temporary compromise to get the men back to work, and was specifically without prejudice to such action as the Board might later take in respect to such grievances.
The respondent, however, insists that the violence which occurred during the April strike absolves it from responsibility for the reinstatement of those who struck in November, under the doctrine of National Labor Relations Board v. Fansteel Corporation, 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599; But substantially all of the strikers now ordered reinstated and charged with violence at the April strike, were taken back when that strike was settled, and to some extent, at least, their violence was condoned. The Board, however, refused reinstatement to an employee who was convicted in the local court for malicious destruction of property by overturning the car of a non-striker, yet it affirmed the Examiner’s order for the reinstatement, with back pay, of Shieble who was convicted of assault and battery. It is difficult to perceive why the latter offense was not as serious an act of violence as the former, and both are equally established by conviction without implication that either was denied a fair hearing. While we are bound by fact findings of the Board, based upon evidence and reasonable inferences drawn therefrom, we are not, we think, concluded from setting aside a finding or directive that appears to be arbitrary or capricious. The order for Shieble’s reinstatement should be set aside. The violence of these two employees, so clearly established by their convictions, is not, however, to be imputed to other union members in the absence of proof that identifies others as participating in such violence. 29 U.S.C.A. § 106 (Norris-LaGuardia Act) ; National Labor Relations Board v. Ohio Calcium Co., 6 Cir., 133 F.2d 721.
The order of the Board will be modified in the respects indicated, and as so modified a decree may be presented for its enforcement.
Modified and affirmed.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Hedwig POKRINCHAK, Mary Pokrinchak, and Jordan Pokrinchak, Appellants, v. HOLIDAY HOUSE MOTEL, INC., Appellee.
No. 9978.
United States Court of Appeals Fourth Circuit.
Argued Nov. 5, 1965.
Decided Nov. 17, 1965.
Edwin B. Fockler, III, Elkton, Md., (Roney & Fockler, Elkton, Md., on the brief), for appellants.
Alleck A. Resnick, Baltimore, Md., (Kartman & Resnick, Baltimore, Md., on the brief), for appellee.
Before HAYNSWORTH, Chief Judge, and ALBERT V. BRYAN and J. SPENCER BELL, Circuit Judges.
HAYNSWORTH, Chief Judge:
The plaintiff sought to recover damages consequent upon an alleged deceit perpetrated by the sellers of a motel which' she purchased at public auction. After a verdict of a jury for the defendant, she brought the case here complaining of the Court’s instructions. We affirm, for we find the submission fair and complete.
In response to advertisements she had seen in the New York Times plaintiff, with an adviser or male companion, went to a motel in Maryland on the morning of the afternoon when it was to be put up for public sale. The plaintiff testified that she and her adviser went to the motel office, whereupon they were taken by the manager’s wife into three rooms in one wing of the motel. She did not enter other open rooms in the vicinity of those she saw, but she testified that after her return to the office, she asked to see more of the rooms. The manager’s wife, in his presence, so the plaintiff stated, responded that when she had seen three rooms she had seen them all. Later the manager did show her the heating plant and other facilities.
The plaintiff’s testimony about the alleged statement of the manager’s wife was contradicted by the defendant’s evidence.
Testimony on behalf of the plaintiff indicated that after she purchased the motel at auction, she visited it on several occasions before the final closing and that, the day after she actually took possession, she discovered for the first time that some of the rooms in a wing which she had not inspected were uninhabitable because of severe termite infestation.
The Court submitted the case to the jury on the theory that under the laws of Maryland, recovery for deceit might be had if the manager’s wife made the statement attributed to her by the plaintiff and if it was reasonably understood as a representation that all the other rooms were in comparable condition to that of those she had seen, or if it was-intended to, and did, effectively divert the plaintiff from inspecting other rooms. In either event, however, the jury was told the plaintiff could recover only if the manager’s wife had apparent authority to show the rooms and to speak for the defendant, that is, if the plaintiff reasonably understood that the manager’s wife was acting for and in the interest of the sellers, and only if the jury found that the manager’s wife actually made the statement the plaintiff attributed to her.
The plaintiff contends that she is entitled to recover if the sellers affirmatively misrepresented the condition of the motel or if they obstructed or prevented her discovery of its defects through an inspection of the affected rooms. The Court clearly informed the jury, however, that it might find a verdict for the plaintiff if it found the underlying facts to support either theory of the plaintiff’s claim. In either event, the plaintiff’s case was dependent upon a finding that the wife of the motel manager made the statement attributed to her by the plaintiff. There was no other evidence of an effective misrepresentation or of an obstruction of an inspection. The Court properly instructed the jury that if it found that the manager’s wife made no such statement, they must find for the defendant.
The instruction about the apparent authority of the wife to speak for the sellers was essential and as favorable to the plaintiff as she had any reason to expect. Such a statement in private to the plaintiff by her own adviser or by an obvious interloper in the absence of the sellers or any of their representatives would give rise to no cause of action against the sellers. It is only if the manager’s wife spoke for the sellers or was reasonably understood by the plaintiff to speak for them, that the sellers could be held responsible for her conduct. Indeed, on this phase of the case, the Court’s instructions approached a requirement that the jury find that the sellers were responsible for whatever the wife said; the verdict for the defendant is understandable only in terms of a finding by the jury that the alleged statement was not made, or, if made, that it did not affect the scope of the plaintiff’s inspection.
We conclude that the plaintiff’s criticisms of the Court’s instructions to the jury are unfounded.
Affirmed.
. The plaintiff testified that some of the damaged areas had been covered over with fresh plaster. She did not see the fresh plaster until after she took possession of the motel, however, and, when she did see it, she recognized it as camouflage. Application of the plaster may have been an attempted misrepresentation, but it was not effective, for it did not mislead the plaintiff.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
WAYNE TITLE & TRUST CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 10541.
United States Court of Appeals Third Circuit.
Argued Jan. 10, 1952.
Filed March 17, 1952.
Charles S. Jacobs, Philadelphia, Pa. (William R. Spofford, Robert R. Batt, Philadelphia, Pa., Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., on the brief), for petitioner.
Harry Marselli, Washington, D. C. (Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack, Lee A. Jackson, Special Assts. to the Atty. Gen., on the brief), for respondent.
Before GOODRICH and HASTIE, Circuit Judges, and BURNS, District Judge.
HASTIE, Circuit Judge.
In issue here is the status for income tax purposes of a percentage of title insurance premiums received by the taxpayer, an insurer, and set aside by it during the taxable year, in a “reinsurance reserve fund” in compliance with a state statute.
The taxpayer is a Pennsylvania corporation authorized to engage in a general banking, trust and title insurance business. A Pennsylvania statute regarding title insurance provides, among other things, that one engaging in the title insurance business must establish and maintain a reinsurance reserve fund so long as any policies shall be outstanding; that sums not less than stated percentages of all premiums received shall be set aside in this fund until the accumulation shall reach a certain amount; that the custody of the fund shall be retained by the title insuring company; that the fund shall be earmarked and kept separate and apart from other assets of the company; that the fund shall be under the supervision of the Insurance Commissioner; that the income from the fund shall become a part of the general assets of the company and that the principal of the fund “shall be a trust for the protection of the policyholders, and shall be applied only for the benefit of the holders of policies of title insurance.” Penn.Stat. Ann., Title 40, §§ 900, 901, 903, 904.
In compliance with this statute, petitioner set aside in its “reinsurance reserve fund”- during the taxable year 1946, an amount of money equal to 10% of all title insurance premiums collected during the year. This amount was not included in its gross income for federal income tax purposes. The Commissioner assessed a deficiency which the Tax Court upheld. The matter is before us on petition for review.
Preliminarily, it is clear, as was recognized by the Tax Court, that, because insurance constitutes only a small part of taxpayer’s business, its gross income is determinable under the general provisions of Section 22(a) of the Internal Revenue Code rather than other special provisions applicable to insurance companies. But in applying Section 22(a) to the facts of this case it is important that the money in question was received in payment for title insurance.
Normally, title insurance premiums are regarded as fully earned when received. And this characteristic is not destroyed by the requirement of Pennsylvania law that a portion of such premiums, or an equivalent sum, be set aside and retained in a reinsurance reserve fund. This court so ruled in American Title Co. v. Commissioner, 3 Cir., 1935, 76 F.2d 332, and that ruling is not challenged here. Rather, taxpayer argues that though the premiums paid to it were fully earned by it, the portion in dispute was received in trust for the insured so as not to be income to the insurer. Whether the concept of trust for the benefit of the insured can ever be used to prevent fully earned premiums from being income to the insurer we need not consider. It is enough that in the circumstances of this case the premiums clearly were income.
Since taxpayer’s task is to prove that premium payments actually received by it were not received as income it must show that a part of each premium came to it from the insured impressed with a trust. Such, it says, is the effect of the Pennsylvania statute. But that conception requires an unwarranted construction of the statutory scheme. The basic requirement of the statute is that the insuring company shall build a reinsurance reserve up to a required $500,000. This may be done by setting aside sums equal to specified percentages of premiums, or it may be done by setting aside sums out of surplus and undivided profits, or by utilizing reserves accumulated under a precedent statute, or by a combination of these methods. But the build up toward the required $500,000, however achieved, must be fast enough so that the fund will at no time be smaller than a stipulated percentage of premiums received. The required maintenance of a minimum proportional relationship is in itself not enough to make a part of any premium a trust res as it is received. It is much more significant that the insurer was explicitly authorized to use resources other than current premiums to establish and maintain the required fund. The flexible scheme for the accumulation of a reinsurance reserve must be considered whole, and so viewed cannot be described as imposing a trust upon premiums as received.
As a separate point, it is noteworthy that under the Pennsylvania statute, the income of the reinsurance reserve fund becomes the sole property of the taxpayer and can be used or disposed of as the taxpayer may see fit. In this very case the fund was invested in bonds. The resulting income was the unrestricted property of taxpayer. This is a significant distinction between the present situation and those cemetery association cases relied upon by taxpayer in which certain types of perpetual care funds have been regarded as trust funds excludible from cemetery association income. Commissioner of Internal Revenue v. Cedar Park Cemetery Ass’n, Inc., 7 Cir., 1950, 183 F.2d 553; American Cemetery Co. v. United States, D.C.D.Kan. 1928, 28 F.2d 918; Troost Avenue Cemetery Co. v. United States, D.C.D.Mo. 1927, 21 F.2d 194.
The Tax Court was correct in its conclusion that the entire amount of title insurance premiums received by taxpayer constituted income.
But even so, taxpayer says in its alternative argument, the transfer of the sum here in question from its unrestricted funds to the statutory reinsurance reserve fund amounted to a business expense deductible from gross income. We think, however, that in setting money aside in its reinsurance reserve fund taxpayer did not pay or incur expense within the meaning of the provision of Section 23 of the Internal Revenue Code, 26 U.S.C. § 23, which permits the deduction from gross income of ordinary business expenses incurred within the taxable year.
No payment was made to a third person as when a risk is reinsured. No fixed obligation to policyholders was involved. The insurer merely segregated and kept in its own custody, as a required safeguard against contingent liability, a portion of the Premiums collected. It is well settled that analogous voluntary segregation of reserves is not expense. Parkview Memorial Ass’n v. Commissioner, 1936, 34 B.T.A. 406; Springdale Cemetery Ass’n, 1925, 3 B.T.A. 223; Appeal of Pan-American Hide Co., 1925, 1 B.T.A. 1249. And the fact that this precaution is mandatory rather than voluntary does not make it any more the incur-cence of expense. Spring Canyon Coal Co. v. Commissioner, 10 Cir. 1930, 43 F.2d 78, 76 A.L.R. 1063, certiorari denied Spring Canyon Coal Co. v. Burnet, 284 U.S. 654, 52 S.Ct. 33, 76 L.Ed. 555. This failure to meet the concept of expense is very clear in the title insurance field because the protected obligation is so patently contingent. Unlike life insurance which insures against death liabilities certain to arise but uncertain only as to time, title insurance insures against defects which may or may not, at some future date, be found to have existed in real property titles at the time the policy was issued. Any liability which the title insurance company may have on its policies is, therefore, contingent and any reserve it may set up in the nature of self-insurance to meet this liability must be contingent rather than fixed. The attempted deduction of such a reserve, whether maintained voluntarily or in compliance with law, from gross income must be disallowed since it reflects no expenses paid or incurred.
The decision of the Tax Court will be affirmed.
. Insuring titles is insurance business. American Title Co. v. Commissioner, 1933, 29 B.T.A. 479, affirmed 3 Cir., 1935, 76 F.2d 332. In determining the tax liability of a company engaged in several activities including tbe insurance of titles, however, whether its gross income is determined by § 204 applicable to insurance corporations or by § 22(a) applicable to non-insurance corporations, 26 U.S.C. §§ 22(a), 204, depends on the activities which are the principal source of income during the taxable year. Bowers v. Lawyers Mortgage Co. 1932, 285 U.S. 182, 52 S.Ct. 350, 76 L.Ed. 690; Empire Title & Guaranty Co. v. U. S., 2 Cir., 1939,101 F.2d 69. Here the Tax Court found that only 9.4% of petitioner’s income during the taxable year was derived from the insurance business.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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songer_judgdisc
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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 court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
CORCORAN v. COLUMBIA BROADCASTING SYSTEM, Inc., et al.
No. 9664.
Circuit Court of Appeals, Ninth Circuit.
June 30, 1941.
Blase A. Bonpane, of Hollywood, Cal., for appellant.
Frederick Leuschner and Richard Harper Graham, both of Los Angeles, Cal., for appellee Montgomery Ward & Co.
Before DENMAN, MATHEWS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
The appeal is from a judgment awarding attorneys’ fees in a suit for infringement of copyright, the allowance being made under the claimed authority of § 40 of the Copyright Act (Act of March 4, 1909, c. 320, 35 Stats. 1084, 17 U.S.C.A. § 40), providing that the court “may award to the prevailing party a reasonable attorney’s fee as part of the costs.”
Appellant was the plaintiff below. The defendants (appellees) filed a motion to dismiss and “for a further and better statement of particulars.” In effect the motion to dismiss was denied, but the application for a more particular statement was granted with leave to appellant to amend within a stated time. Appellant did not amend, and within the time specified he moved for a voluntary dismissal. The court ordered “that the motion of the plaintiff to dismiss be granted with allowance of costs to the defendants and such attorneys’ fees as may be hereafter awarded”, and the matter of attorney’s fees was ordered reserved until after the trial or dismissal of a companion infringement suit in which appellant was plaintiff. The latter case terminated in a dismissal and was the subject of an independent appeal. Corcoran v. Montgomery Ward & Co. et al., 9 Cir., 121 F.2d 572, decided June 28, 1941.
Following the dismissal in the suit just mentioned, the court turned its attention to the matter of attorneys’ fees in the present suit. Concluding that the suit had been filed “without justification, either in law or in fact”, the court awarded each of the defendants an attorney’s fee of $400. The appeal followed.
Appellant claims that in view of his voluntary dismissal without prejudice, appellees were not “the prevailing party” within the meaning of the statute; hence the court lacked power to make an áward of attorneys’ fees. We think this is too narrow an interpretation of the statute. The authority given is not in terms limited to the allowance of fees to a party who prevails only after a trial on the merits. Where, as here, a defendant has been put to the expense of making an appearance and of obtaining an order for the clarification of the complaint, and the plaintiff then voluntarily dismisses without amending his pleading, the party sued is the prevailing party within the spirit and intent of the statute even though he may, at the whim of the plaintiff, again be sued on the same cause of action. Compare Marks v. Leo Feist, Inc., 2 Cir., 8 F.2d 460; Cohan v. Richmond, 2 Cir., 86 F.2d 680.
Appellant says that since the work done by counsel for appellees in the present case would have been done in any event in the companion case, the allowance of fees in this instance was an abuse of discretion. In the other suit referred to a motion for the allowance of counsel fees was denied, the court observing that that action “was filed in good faith and that defendant’s motion to dismiss was sustained upon a question of law not heretofore passed upon in the reported decisions.” Corcoran v. Montgomery Ward & Co., D.C., 32 F.Supp 422.
Each case involved the claimed infringement of the same allegedly copyrighted work, so that much of the work done by appellees’ counsel in the present case was no doubt of help to them in the defense of the other suit. There was, however, a substantial difference in the cases in respect of the allegations claimed to show the existence of a valid copyright. Without discussing the difference, it is enough to say that probably some investigation was necessary in the present case which the other did not entail. And aside from these considerations counsel necessarily expended some time and effort merely in appearing and resisting the suit prior to its voluntary dismissal.
An allowance of attorneys’ fees was within the sound discretion of the trial court and we think there was no abuse of discretion.
Affirmed.
The other case was said to be a consolidation of two cases.
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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